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In re Complaint of Ingram Barge Co.

United States District Court, N.D. Illinois, Eastern Division

August 16, 2016

IN THE MATTER OF THE COMPLAINT OF INGRAM BARGE COMPANY AS OWNER OF THE M/V DALE A. HELLER AND THE IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, AND IN117513, PETITIONING FOR EXONERATION FROM OR LIMITATION OF LIABILITY, IN THE MATTER OF AMERICAN COMMERCIAL LINES, LLC, AS OWNER AND INLAND MARINE SERVICE, INC. AS OWNER PRO HAC VICE OF THE M/V LOYD MURPHY FOR EXONERATION FROM OR LIMITATION OF LIABILITY.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, United States District Court Judge.

         On May 6, 2016, the United States moved to limit the testimony of Petitioner Ingram Barge Company’s expert, Captain Samuel Schropp, pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (R.762). Claimant Marseille Elementary School District (“MESD”) also moved to exclude the supplemental opinions of Captain Schropp. (R.768). For the following reasons, the Court, in its discretion, grants in part and denies in part the United States’ motion, and denies MESD’s motion.

         BACKGROUND

         I. Factual Background

         On April 18, 2013, the M/V Dale Heller-owned by Petitioner Ingram Barge Company-attempted to navigate its fourteen-barge tow past a federal dam located near the town of Marseilles, Illinois during a high-water situation. Other maritime vessels agreed to assist the Dale Heller in this navigation attempt, including: (1) the M/V Loyd Murphy (“Loyd Murphy”), operated by Inland Marine Service, Inc. (“IMS”) and owned by American Commercial Lines, LLC; (2) the M/V City of Ottawa, a United States Army of Engineers (“Corps”) vessel; and (3) the M/V Creve Coeur, another Corps vessel.[1] While traversing Illinois River Mile 247.0 near the Marseilles Dam, the Dale Heller’s tow broke apart, and seven of its barges either allided with the dam or sank upriver from it. Subsequent to this incident, the river waters overtopped the surrounding earthen dike and flowed into the town of Marseilles, causing substantial damage to real and personal property.

         Ingram and IMS both filed a complaint in admiralty for exoneration from or limitation of liability in connection with this April 18, 2013 incident. (R.1; R.1, 13-cv-04292). The United States filed a claim in both limitation actions for damages to the Marseilles Dam and related structures. (R.129, R.374). Individual claimants also filed general maritime claims against Ingram, IMS, and the United States for their resulting property damage.

         II. Captain Schropp’s Qualifications

         Captain Samuel Schropp has decades of experience in the inland marine industry. In 1978, he received his 100 Gross Ton Western Rivers Passenger Operators license, and, two years later, he received his Operator Uninspected Towing Vessels, Western Rivers and Inland Waters license. Under those licenses and others, he has served as a pilot and captain on various towing vessels in inland waters, including the Upper Mississippi River, Lower Mississippi River, the Illinois River, the Ohio River, the Tennessee River, and the Arkansas Rivers, as well as the Gulf Intracoastal Waterway. He also received his Designation Examiner certification from the United States Coast Guard in 2004. From 1990-2005, he worked for Ingram Barge Company as a pilot. In 2004, he formed Schropp Marine Consulting LLC, which provides “management/leadership and safety training, simulator facilitation, and expert witness services to the brown water marine industry.” He continues to serve as a “trip pilot” for various towing companies on the Western Rivers, and has served as an expert witness in several admiralty cases. (R.789-4, Schropp CV; R.789-1, Schropp Rep. at 5-6).

         III. Captain Schropp’s Expert Opinions

         In his report dated February 3, 2016, Captain Schropp offers several opinions about the events of April 17-18, 2013, leading up to the dam allision. (R.789-1, Schropp Rep.). In particular, Captain Schropp opines as to the experience and competency of the Dale Heller’s captain, the seaworthiness of the Dale Heller, and the appropriateness of its tow characteristics and configurations given the prevailing weather conditions and forecasts. He also offers opinions relating to the prudence of the Dale Heller’s transit and mooring decisions on April 16-17, and of the April 18 plan to move the Dale Heller’s tow into the Marseilles Canal. Ultimately, Captain Schropp opines that “the sole cause of this incident” was the failure of Lockmaster Larry Rodriguez-a Corps employee-to “reduce the flow of water through Marseilles Dam so that the M/V Dale A. Heller, its crew, and tow could safely enter Marseilles Canal.” (Id.).

         Captain Schropp’s supplemental report, dated March 19, 2016, and produced on March 21, 2016, opines on the adequacy of Ingram’s Policy and Procedures Manual. (R.789-2).

         DAUBERT STANDARD

         “A district court’s decision to exclude expert testimony is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).” Brown v. Burlington No. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014). “The rubric for evaluating the admissibility of expert evidence considers whether the expert was qualified, whether his methodology was scientifically reliable, and whether the testimony would have assisted the trier of fact in understanding the evidence or in determining the fact in issue.” Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014); see also Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) (“Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable”). Although the Seventh Circuit reviews “the district court’s application of Daubert [] de novo, ” if “the court adhered to the Daubert framework, then its decision on admissibility is reviewed for abuse of discretion.” Estate of Stuller v. United States, 811 F.3d 890, 895 (7th Cir. 2016).

         A district court’s evaluation of expert testimony under Daubert does not “take the place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012); see also Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011) (“The admissibility determination is not intended to supplant the adversarial process, and so even ‘shaky’ testimony may be admissible”). Once it is determined that “the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.’” Lapsley, 689 F.3d at 805 (quoting Daubert, 509 U.S. at 596). A district court’s inquiry under Daubert is a flexible one and district courts have wide latitude in performing this gate-keeping function. SeeKumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Hartman, 758 F.3d at 818. “‘[T]he key to the gate is not the ultimate correctness of the expert’s conclusions, ’” rather, “‘it is the soundness and care with which the expert arrived at her ...


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