May 2019

In the recent issue of Long Island Boating World magazine, Tim
covered the subject of the admissibility of expert testimony. This
subject arises in a number of maritime settings, including
boating
accidents
, cruise ship accidents, and Jones Act cases involving
commercial mariner injuries arising in accidents on U.S. flag
vessels on navigable waters.

The Federal Rules of Civil Procedure as well as the Federal Rules
of Evidence have provisions governing the use of experts, in terms
of the basis of testimony and what needs to be disclosed to
opposing defense attorneys before trial.

The use of expert testimony in boating accidents, injured seamen
lawsuits, and cruise ship injury accidents can result in successful,
high-dollar figure verdicts when done properly with a skilled expert
who presents compelling evidence to a jury that withstands
determined and withering cross-examination by opposing counsel.
However, improperly attempting to use experts can also result in
impeachment of an expert witness, which can undermine or be fatal
to effective advocacy.

Another key point to keep in mind is that the expert could be
presenting information, such as forensic evidence in a boating
accident case that could help demonstrate which vessel had right
of way and which vessel was burdened, or the give-way vessel. It is
an art form for the expert to perform compellingly in this phase of
jury trial - presenting nautical issues in a convincing manner
without boring jurors before they are given jury instructions in
preparation for a verdict.

Tim covers a number of these issues in the recent article,
Admissibility Issues in Using Expert Marine Testimony.

It’s sometimes said that the happiest two days for boat owners are
the day they buy their boat and the day they sell it. How much that
actually holds true is something that can only be decided by the
individual boat owner. There are young sailors who manage to
squeeze so much fun out of rickety little sailing dinghies that you’d
think their gel coats would wear off… and there are luxury yachts
that sometimes sit idle for weeks, yearning to have people enjoy
them.

But in the big picture, a boat purchase is usually a fun event for
many people after the stressful parts get forgotten in the rear-view
mirror. The transaction is filled with the excitement of inspections,
surveys, sea-trials, and anticipation of sunset cruises. For
surveyors who perform the difficult task of crawling through every
nook and cranny of a boat to make sure it’s sound, almost every day
of your job is essentially someone else’s exciting “first day of buying
a boat.”

People are so accustomed to the valuable contribution surveyors
provide during boat purchases that it’s easy to think of surveyors
only in such terms. But marine surveyors do so much more. They
are called upon to provide expert testimony regarding collisions,
groundings, sinkings, and storm damage. They appear in court to
testify, where their opinions determine the outcome of maritime
lawsuits ranging from salvage claims to warranty disputes.

The findings of marine surveyors can help determine liability in
boating accidents, particularly when their skills are applied on a
forensic level. They can be called to examine whether a sinking was
an unforeseeable event or was predictable in terms of maintenance
issues related to wear and tear. When insurance companies have
to issue checks to reimburse owners for damages, they often rely
upon the expert testimony of surveyors in computing the dollar
amounts of payments.

But the introduction of a surveyor into a situation can sometimes
lead to disputes, resulting in courts having to decide if their role is
permissible. This can arise in settings where the parties do not
unanimously agree as to the involvement of a surveyor. What is
often at stake in such settings is not so much the surveyor’s fees,
whether it’s several thousand dollars for an investigation, technical
report, metallurgical analysis, and court appearances. The disputes
here more often involve conflicting opinions as to valuation of
repairs or total loss figures.

A compelling issue that arises in these settings is full disclosure
so that no one is entering the legal arena without forehand
knowledge. As part of the required disclosures, “a party must
disclose to the other parties the identity of expert witness under the
Federal Rules of Civil Procedure. The disclosure must be
accompanied by a written report ... if the witness is one retained or
specially employed to provide expert testimony in the case or one
whose duties as the party's employee regularly involve giving expert
testimony.” This is codified in the Federal Rules of Civil Procedure
under Section 26 (a)(2)(B). If a party's expert witness is not required
to prepare a written report, the party must only disclose “'the subject
matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705” and “a summary of the
facts and opinions to which the witness is expected to testify.” Fed.
R. Civ. P. 26(a)(2)(C).

So while a complex boating or maritime dispute can open the door
to a contest of expert opinions, court rules are in place to maintain
guidelines for the use of experts. However, the fact remains that
litigation for highly technical disputes can become costly.

Ref: New Hampshire Insurance Company, as Subrogee of
Sanctuary, LLC, v. Bennett Brothers Yachts, No. 7:16-CV-237-D, U.
S. District Court for the Eastern District of North Carolina




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