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Allegro Ventures, Inc. v. Almquist

United States District Court, S.D. California

May 8, 2014

ALLEGRO VENTURES, INC., Plaintiff,
v.
MICHAEL W. ALMQUIST, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES MOTIONS IN LIMINE [DOCS. 59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 72, 73, 74, 75]

M. JAMES LORENZ, District Judge.

On August 31, 2011, Allegro Ventures, Inc. ("AVI") filed a complaint against Michael Almquist ("Almquist"), seeking declaratory relief under general maritime law. On July 24, 2013, this Court granted Almquist's motion to realign parties for trial, designating Almquist as the Plaintiff, and AVI the Defendant. (Doc. 53.) This admiralty action arises out of a dispute concerning whether Almquist was employed as a seaman in service of AVI's vessel when he suffered from a seizure that eventually led to the discovery of metastatic melanoma in his brain and lung. Now pending before the Court are the parties' motions in limine.

The Court found these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, and as indicated below, the Court GRANTS IN PART and DENIES IN PART the parties motions in limine.

I. BACKGROUND

AVI is incorporated in Nevada and owns the seventy-foot luxury motor yacht ALLEGRO ("M/Y ALLEGRO"). ( Frey Decl. [Doc. 29-2] ¶ 2.) AVI's President, Leo Frey ("Frey"), is principally responsible for the ownership, operation, and maintenance of the M/Y ALLEGRO. ( Id. ) Almquist is a resident of Carlsbad, California, who works in the maritime industry and is licensed by the United States Coast Guard to operate up to 200-ton vessels for near-coastal voyages. ( Almquist Decl. [Doc. 18-3] ¶¶ 1, 4.)

Since 1993, Almquist has been doing business as Almquist Yacht Management. ( Almquist Dep. [Doc. 29-7] Vol. I, 63:17-20.) Under this fictitious business name, Almquist provides boat-maintenance and captain services to various yacht-owning clients in the Southern California area. ( Almquist Decl. ¶ 4.) When servicing their yachts, Almquist charges clients an hourly rate plus expenses for all work performed on the vessels. ( Id. ¶ 10.) He also charges for his travel time if he is making an after-hours trip for a specific client. ( Id. ) Additionally, Almquist provides captain services to his clients at a flat rate of $300 per day, often for trips to Catalina Island or the area around San Diego Bay. ( Id. ¶ 7.) For several of these clients, he considered himself the "designated captain, " where he has an agreement to regularly maintain and repair the clients' luxury yachts as needed while docked, and remain available to take owners and guests out on voyages for his flat-rate fee. ( Id. ¶ 4.) Almquist provided a similar combination of these services to AVI over a period of approximately twelve years, and it is this relationship that forms the basis of this dispute.

On Thursday, November 18, 2010, Almquist delivered the M/Y ALLEGRO to the Shelter Island Boat Yard at the request of Frey for the vessel to be hauled out to receive its biennial shipyard maintenance. ( Almquist Decl. ¶ 13.) Because Frey wished to discuss what work was going to be performed on the vessel, he scheduled a meeting with Almquist to meet him at the boatyard over the weekend. ( Id. ¶ 14.)

On Sunday, November 21, 2010, while driving to meet Frey at the boatyard, Almquist suffered a "seizure-like episode" and lost consciousness, crashing his pickup on the side of the freeway. ( Almquist Decl. ¶ 15.) Emergency services transported Almquist to a hospital where he was treated for his injuries. ( Id. ¶ 16.)

While receiving treatment, a brain scan was undertaken to discover the cause of the seizure. ( Almquist Decl. ¶ 16.) It revealed a small lesion in Almquist's left parietal lobe. ( Id. ) Initially, doctors believed that the lesion may be some type of cerebral parasite. ( Id. ) However, on May 13, 2011, a craniotomy was performed to remove the lesion, and subsequent lab analysis determined that the lesion was a metastatic melanoma brain tumor. ( Id. ) A second tumor was later discovered in Almquist's right lung. ( Id. ) However, the primary melanoma site has not been found. ( Id. ) Almquist has since undergone chemotherapy and has accrued in excess of $700, 000 in medical expenses relating to his automobile injuries and cancer treatments. ( Id. 18.) AVI initially paid Almquist's medical expenses for the craniotomy and lung biopsy after being informed that Almquist was possibly infected with a parasite while working for AVI. ( Id. ¶¶ 16, 18.) But after discovery of the melanoma, a dispute has arisen concerning whether AVI is responsible for paying any further medical bills related to both the automobile injuries and the cancer treatments. ( Id. ¶ 18.)

On August 31, 2011, AVI commenced this action against Almquist. However, the parties were realigned pursuant to this Court's July 24, 2013 order. ( Order Realigning Parties [Doc. 53].) Almquist asserts two claims: (1) maintenance and cure benefits from AVI for his injuries sustained in the automobile accident and for his cancer treatments, and (2) the willful and arbitrary failure of AVI to pay maintenance and cure. ( Answer [Doc. 4] Part II.B. ¶¶ 8-18.) AVI seeks a declaratory judgment stating that Almquist was not employed as a seaman in service of the M/Y ALLEGRO and therefore is not entitled to maritime maintenance and cure benefits. ( Compl. [Doc. 1] ¶¶ 15-18.) Additionally, and alternatively, AVI asserts that Almquist is not entitled to maintenance and cure benefits because his injury was the result of "wilful misbehavior." ( Def.'s Opp'n #1 [Doc. 77] 1.)

On June 6, 2013, this Court denied both parties' cross motions for summary judgment. In so doing the Court indicated that "this dispute in its entirety initially depends on whether Mr. Almquist was employed as a seaman in service of the M/Y/ ALLEGRO at the time of his injury." ( Order Denying Summ. J. [Doc. 47] 9.) In order to make this determination, the Court first examined the "existence of an employer-employee relationship between AVI and Mr. Almquist, and then analyze[d] whether Mr. Almquist is entitled to seaman status as a matter of law." ( Id. ) This Court concluded that "a genuine issue of material fact exists as to whether an employment relationship existed under maritime law." ( Id. 12.) The Court then found that Mr. Almquists' seaman status, which is a mixed question of fact and law, was inappropriate to decide on summary judgment and should be left to the jury as well. ( Id. 16-21.)

II. PLAINTIFF'S MOTIONS IN LIMINE

A. Motion #1 - To Exclude Evidence of Plaintiff's Smoking and Alcohol Use

Almquist seeks to exclude evidence of his smoking and alcohol use under Rule 402 of the Federal Rules of Evidence. ( Pl.'s Mot. #1 [Doc. 59] 5.) Almquist asserts that any evidence of smoking and drinking is irrelevant because there is no evidence linking smoking or drinking to metastatic melanoma. ( Id. 5-6.) Alternatively, Almquist argues that admitting this evidence would be unfairly prejudicial "by portraying him in a bad light." ( Id. 10.) AVI opposes, asserting that such evidence is relevant because "the jury is entitled to hear the cause of Plaintiff's accident so that it can determine (1) whether Plaintiff was in the service of the ship' at the time of the accident and (2) the viability of AVI's maintenance and cure defenses that Plaintiff is guilty of willful misconduct, of concealing his pre-existing condition and that he could not have reasonably considered himself fit for duty by virtue of his chronic alcoholism." ( Def.'s Opp'n #1 [Doc. 77] 1.)

First, it is clear that evidence of Almquist's smoking and drinking do not bear on the threshold issue of Almquist's status as an employee or as a seaman. As previously stated in this Court's order denying summary judgment, the jury must determine (1) whether Almquist was an employee of AVI, and, if so, (2) whether Almquist was employed by AVI as a "seaman." ( Order Denying. Summ. J. 9.) However, such evidence is relevant to other issues to be addressed at trial.

"A defense which a ship owner can assert... is wilful misconduct by the seaman [citation], which is the sole cause of the illness or injury." Smith v. Isthmian Lines, Inc., 205 F.Supp. 954, 955-56 (N.D. Cal. 1962)(emphasis added). Intoxication is considered wilful misconduct that will bar recovery in some cases. Id. AVI asserts that due to Almquist's alleged drinking he was not in the "service of the ship, " ( Def.'s Opp'n #1 9-10), because his accident was the result of his chronic alcoholism, which constitutes willful misconduct. ( Id. 6-9).

Here, Almquist seeks "cure" related to (1) the injuries he sustained as a result of the automobile accident, and (2) expenses related to treatment of his metastatic melanoma. ( Answer Part II.B ¶ 12.) Evidence of Almquist's history of alcohol use is relevant in determining the "sole cause" of the automobile accident and the cure expenses associated with those injuries. The parties both acknowledge that AVI plans to introduce evidence of Almquist's alcohol use to support its defense of willful misconduct. ( Pl.'s Mot. #1 8-9; Def.'s Opp'n #114, 15). Both parties also appear to agree that, such evidence does not address the "sole cause" of Almquist's metastatic melanoma, and, thus, is not relevant to the cure related to those medical expenses. ( Pl.'s Mot #1 8-9; Def.'s Opp'n #114 n. 7 ("That AVI's expert physicians are not expected to testify that Plaintiff's melanoma was caused by smoking or alcohol abuse misses the point.")).

Almquist's claim that such evidence "is not relevant to any wilful misbehavior' defense, because there is no evidence that Plaintiff's drinking or smoking caused his metastatic melanoma " is accurate but incomplete. ( Pl.'s Mot. #1 5.) Although the evidence is not relevant to determining the cause of the melanoma, it is relevant to the cause of the accident and the injuries sustained as a result of that accident, as explained above.

Accordingly, the Court GRANTS IN PART and DENIES IN PART Almquist's motion in limine and ORDERS that evidence of Almquist's drinking and smoking is admissible only in regard to AVI's "willful misconduct" defense with respect to Almquist's claims for damages relating to the injuries sustained in the automobile accident, and not his damages in connection with his cancer.

B. Motion #2 - To Exclude Expert Testimony of James McMullen

Federal Rule of Evidence 702 allows expert opinion testimony so long as "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. Rule Evid. 702. "Expert testimony is admissible pursuant to Rule 702 if it is both relevant and reliable." Mukhtar v. Cal. State. Univ., 299 F.3d 1053, 1063 & n. 7 (9th Cir. 2002) (internal quotation marks and citation omitted).

Almquist seeks to exclude the testimony of AVI's attorney expert witness, James McMullen, alleging the following: (1) the issue is not amenable to expert testimony; (2) his testimony concerning the applicable law invades the province of the Court; (3) his opinion on application of facts to the law invades the province of the jury; (4) his opinions are not useful or legally helpful as required by Rule 702; and (5) his opinions are argumentative and unreliable. ( Pl.'s Mot. #2 [Doc. 60] 3.) Although listed as a separate reason, Almquist's first argument, that the issues in this case are not amenable to expert testimony, appears to be a summary of the remaining four reasons. Thus, the Court will consider each of those in turn.

Almquist asserts that Mr. McMullen should not be allowed to testify as an expert on the law. The Court agrees. To the extent that Defendant seeks to have Mr. McMullen testify about what the applicable law is for this case, this is not admissible.[1] However, Defendant asserts that Mr. McMullen is called to testify as an expert concerning the maritime industry. To this extent, Mr. McMullen's testimony does not invade the province of the Court.[2]

Plaintiff next asserts that allowing Mr. McMullen "to testify as to his conclusion on whether Captain Almquist was a seaman or not or whether he was had a sufficient employment connection to the Yacht ALLEGRO to give rise to an obligation on the part of the owner to pay maintenance and cure... would invade the province of the jury." ( Pl.'s Mot. #2 7.) Although Almquist provides no legal basis for this assertion, he appears to base his argument on an anachronistic law which disallowed expert opinion on ultimate issues on the basis that it usurped the role of the jury. However, "[a]n opinion is not objectionable just because it embraces an ultimate issue." Fed. Rule Evid. 704. Thus, Mr. Mullen's opinion based on the application of facts in this case to the appropriate law does not invade the province of the jury.[3]

Almquist also asserts that Mr. McMullen's testimony is inadmissible because it is not helpful to the trier of fact. Rule 702(a) requires that "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Almquist's argument centers on Mr. McMullen's application of the "wrong laws and legal standards. " ( Pl.'s Mot. #2 7.) As noted previously, to the extent that Mr. McMullen's testimony is in conflict with the applicable law previously set out by this Court, such testimony is inadmissible. However, AVI asserts that Mr. McMullen "is qualified to provide the jury with the background and customs of the conduct of large yacht and other vessel owners, including the type of services that they need performed, their crewing needs, and the way such marine vessels are operated and managed." ( Def.'s Opp'n #2 [Doc. 78] 1.) AVI asserts that this information is relevant to the issue of Almquist's alleged employment by AVI and his status as a seaman. ( Id. 3-7.) The Court agrees with Defendant that such information would be helpful for the jury.

Finally, Plaintiff asserts that Mr. McMullen should not be allowed to testify because his opinions are argumentative and unreliable, and should therefore be excluded pursuant to Rule 403 because any probative value is outweighed by "undue prejudice to Plaintiff, confusion of issues and a waste of time." ( Pl.'s Mot. #2 9.) Plaintiff provides no additional argument beyond this conclusory statement to support this argument, and the Court is unwilling to venture a guess as to Plaintiff's intended argument.

Accordingly, the Court GRANTS IN PART and DENIES IN PART Almquist's motion in limine to exclude the testimony of attorney expert witness James McMullen. Mr. McMullen's expert testimony is allowed to the extent that his opinions are based on the correct legal standards set out by this Court.

C. Motion #3 - To Exclude Expert Testimony of Richard Cogswell

Almquist seeks to exclude the testimony of defense expert Richard Cogswell for the following reasons: "1) the two legal questions before the jury concerning seaman's status and the sufficiency of Plaintiff's employment-related connection to the vessel are not amenable to expert testimony; 2) Captain Cogswell's opinions do not take into account and are not based on the applicable legal test for employment in this maintenance and cure context; 3) Captain Cogswell's opinions about what he perceives as practices in the Yacht Industry' are not relevant; and 4) Captain's Cogswell's opinions, which do little more than tell the jury how the good captain thinks the employment question should turn out, are simply not helpful to the trier of fact and, thus, must be excluded pursuant to Rule 702 of the Federal Rules of Evidence." ( Pl.'s Mot. #3 [Doc 61] 2-3.)

Almquist also asserts that Mr. Cogswell's testimony is not "helpful" to the jury, and is thus inadmissible. ( Pl.'s Mot. #3 4.) While recognizing that Rule 704 allows "witnesses to give their opinions on ultimate issues, " Almquist also notes that such opinions still "must be helpful to the trier of fact." ( Pl.'s Mot. #3 4-5.) AVI claims that Mr. Cogswell's testimony is helpful for the jury because "issues concerning the business of, and work involved in, maintenance of numerous large motor yachts are not within the common knowledge of the average layperson." ( Def.'s Opp'n #3 [Doc. 79] 4.) The Courts agrees and finds that such testimony would be helpful for the jury.

Plaintiff next asserts that Mr. Cogswell should not be allowed to testify because his opinions are not based on the proper law applicable to this case. To the extent that Defendant seeks to have Mr. Cogswell provide opinions based on the application of the incorrect law, this is not admissible. However, Defendant asserts that Mr. Cogswell is called to testify as an expert concerning the maritime industry. To this extent, Mr. McMullen's testimony does not invade the province of the Court.

Almquist asserts Mr. Cogswell's opinions concerning the practices in the "Yacht Industry" are not relevant because (1) there is no allegation of negligence, and (2) the yacht industry is not something separate and distinct from the maritime industry. ( Pl.'s Mot. #3 6.) First, although there is no need to show a deviation from industry customs and practices in this case, as is relevant for negligence claims, customs and practices are still relevant for the jury in looking at the "venture as a whole." Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1495 (9th Cir. 1995). Second, the customs and practices of yacht owners and operators appear to be relevant to the "venture as a whole." Id.

Plaintiff's final argument, that Mr. Cogswell's testimony simply tells the jury how to decide, is little more than a summary of previous arguments. Further, as Plaintiff himself conceded, and as this Court has already noted, "[a]n opinion is not ...


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