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Salomon v. Andrea C. & Andrea C. Fishing Corp.

March 11, 2008

RENATO SALOMON, PLAINTIFF,
v.
ANDREA C. & ANDREA C. FISHING CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER ON MOTIONS IN LIMINE

HAYES, Judge

Pending before the Court are two motions in limine filed by Defendants Andrea C. and the Andrea C. Fishing Corporation (Docs. # 44-45), and one motion in limine filed by Plaintiff Renato Salomon (Doc. # 40). The Court heard oral argument on the these matters on Friday, February 29, 2008.

BACKGROUND

On March 3, 2006, Plaintiff Renato Salomon filed the Complaint in this matter against Defendants Andrea C. and the Andrea C. Fishing Corporation. (Doc. # 1, Complaint). The Complaint asserts claims for negligence, unseaworthiness, failure to provide maintenance and cure, and statutory wage penalties under the Jones Act, and arises from an incident which occurred aboard the Andrea C. fishing vessel on January 17, 2005. (Doc. # 1); (Doc. # 39, Pretrial Order). Specifically, Plaintiff alleges that he was a crew member aboard the Andrea C. fishing vessel on January 17, 2005, and that he was injured when he slipped on an oily substance which Defendant caused to be on the Andrea C's skiff. (Doc. # 1); (Doc. # 39). On June 7, 2006, Defendants filed an answer to the Complaint. (Doc. # 4).

On January 28, 2008, the parties appeared before the Honorable William Q. Hayes, United States District Judge, for a pretrial conference. (Doc. # 36). On January 29, 2008, the Court set the matter for jury trial to begin on March 24, 2008, and set a pretrial schedule for briefing motions in limine and filing pretrial documents. (Doc. # 38). On February 8, 2008, the parties filed the pending motions in limine. (Docs. # 40-44).

DISCUSSION

Plaintiff's Motions in Limine

I. Plaintiff's Motion's in Limine # 1 - Motion to Exclude Expert Opinion That Plaintiff Had a Shortened Work Life as a Tuna Fisherman (Doc. # 40)

Each party has retained an economic expert in this case who will testify as to the economic damages which Plaintiff has suffered as a result of his injuries. One component of economic damages in this case is Plaintiff's work-life expectancy. It is undisputed that Plaintiff is a citizen of the Phillippines and worked aboard the Andrea C. fishing vessel while the Andrea C. fished out of American Samoa.

Defendant's economic expert, Patrick Kennedy, PhD, came to the conclusion that the average tuna fisherman fishing out of American Samoa works until age 55, as opposed to age 60.97, the average retirement age for American males as calculated by the United States Bureau of Labor Statistics. (Doc. # 52-2 at 6-8). Kennedy based his opinion on United States Customs Service data showing the age and position of fishermen "on United States-flagged purse seiners fishing for tuna out of American Samoa." (Doc. # 52-2 at 7). In comparing the statistical work-life age created by the United States Bureau of Labor Statistics, 60.97, to the age predicted by Kennedy's data, 55, Kennedy noted that "[g]enerally, the statistical worklife tables provide a reliable estimate of the number of years that an individual is likely to remain attached to the United States workforce, but they do not always represent the most reliable measure of worklife for a particular individual." (Doc. # 52-2 at 6).

Plaintiff's motion in limine # 1 seeks an order excluding Dr. Kennedy from offering his opinion that Plaintiff may have had a reduced work-life as a tuna fisherman when compared to the average male living in the United States. Plaintiff contends that Dr. Kennedy's study is "junk science," and that is opinion with respect to the life of a tuna fisherman is unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

A. Standard for Admission of Expert Testimony

"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." FED. R. ...


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