Judge overrules Oceaneering International's objection to testimony in maritime injury case

By Charmaine Little | May 6, 2019

NEW ORLEANS – Oceaneering International Inc.’s attempt to ban a plaintiff from bringing exhibits and a deposition testimony into evidence was sustained in part, overruled in part, and deferred in part by the U.S. District Court for the Eastern District of Louisiana on April 2.

Judge Lance Africk ruled on the case.

The plaintiff, Nestor Tercero, claimed that a misplaced ladder on the M/V Ocean Intervention caused him to fall and suffer injuries in September 2016 while working. While Encore Food Services LLC was his employer at the time, he insists he was a borrowed employee of Oceaneering. He sued over allegations of maritime negligence, unseaworthiness and alleged violation of the Jones Act. 

The court granted a continuance to evaluate the borrowed employee claim in January, and Oceaneering objected to his five exhibits brought into testimony, stating that they have no relation to the borrowed servant issue.

The first piece of evidence, Exhibit 25, “is a list of weekly safety topics from June 26, 2016, to Dec. 25, 2016 that correspond to safety meetings aboard the Ocean Intervention,” the ruling states. 

Oceaneering says this should be removed because it only concerns safety when on the Ocean Intervention, as the plaintiff said it is connected to the borrowed servant argument.

“To the extent that Tercero participated in safety meetings and was instructed by Oceaneering supervisors how to perform certain tasks, the exhibit may be relevant to the issue of control and part of the borrowed employee analysis,” said the court. "However, to be admissible, the exhibit will have to be excised to include only the safety meetings that occurred while Tercero was on board the Ocean Intervention."

Other evidence in dispute are Exhibits 21(g) and 26, which are excerpts from the Oceaneering Health, Safety, & Environment Handbook and a combination of five Job Safety Environmental Analysis (JSEA) connected to five separate jobs that were done in the Ocean Intervention galley, respectively. The court said both of these are relevant to borrowed servant issue because they are included in the borrowed employee analysis.

Still, the judge said Exhibit 26 should only include the Sept. 4, 2016, JSEA that Tercero was involved in. He overruled the objection to 21(g) and overruled in part and sustained in part the objection to exhibit 26.

Regarding the final two exhibits, Exhibit 27, a record of meetings on Sept. 11, 2016, and Sept. 18, 2016, and Exhibit 28, a record of two meetings on Sept. 4, 2016, the judge said while Exhibit 28 is relevant since it says that Oceaneering could have perceived Tercero as a vessel crewmember along with its employees, Exhibit 27 isn’t admissible because Tercero was not on the vessel at the time of the meeting.

Oceaneering also took issue with the testimony of Officer Patrick Walsh, who detailed who was responsible for giving performance tools and procedures that Oceaneering supervisors and workers have to comply with. Africk overruled the objection and said, “the probative value of the testimony is not substantially outweighed by the dangers of unfair prejudice, misleading the jury, wasting time, or presenting cumulative evidence under Rule 403.” 

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