Expert Testimony Based On Predictions

In suit against defendant's vessel for alliding with plaintiff's barges and tugboats moored in the Mississippi River during Hurrican Katrina, no error under FRE 702 for trial court to admit opinion testimony that the region was "predicted to receive a 'direct hit' from" the storm and that the defendant's decision to proceed to New Orleans was culpably negligent; no error in relying on expert's opinion even though it was based on predictions, and was "subject to uncertainties," in Crescent Towing & Salvage Co., Inc. v. CHIOS BEAUTY MV, __ F.3d __ (5th Cir. June 23, 2010) (No. 09-30055)

The decision to let a witness testify as an expert does not necessarily mean that the expert opinion will be one of certainty. Often the state of the field is one of uncertainty and contingency. In that case, the expert's opinion is still admissible as long as is helpful to the trier of fact. A recent Fifth Circuit case describes how there is no error in a trial court admitting expert evidence that is uncertain or contingent if that reflects the state of the expert's professional discipline.

In the case, after plaintiff's barges and tugboats (which were moored near New Orleans) and were injured by defendant's vessel "CHIOS BEAUTY MV." The defendant's vessel carried a "dedicated receiver providing worldwide weather reports, as well as .... satellite-based weather information. At the time [of starting its trip] the vessel embarked for New Orleans from Mexico, Notably, its master "mistakenly believed that Tropical Storm Katrina was near the Virgin Islands. Katrina was actually northwest of the Bahamas, and she strengthened into a hurricane later that day" which would ultimately affect New Orleans." Crescent Towing & Salvage Co., Inc., __ F.3d at __.

As explained by the circuit, the allision occurred after:

"The National Hurricane Center (“NHC”) issued two advisories on August 26 that predicted the hurricane would make landfall somewhere within a 400-mile stretch of coastline that included New Orleans. At 4:00 a.m. the next day, NHC issued another advisory that placed New Orleans in the center of the area Katrina was predicted to hit. At 8:30 a.m. that same morning, CHIOS BEAUTY arrived at Southwest Pass, the navigable mouth of the Mississippi. Twenty-five minutes after she took on a pilot and entered the river, NHC issued a hurricane watch for an area that included New Orleans. A representative of Harbor Shipping later testified that he did not consider diverting CHIOS BEAUTY, because “everybody believed that the cool waters of the Mississippi would not ... let the [hurricane] head toward New Orleans.” Later that day, the ship moored at a wharf opposite several barges and tugboats owned by Plaintiffs. When Katrina hit, the ship's lines snapped before the winds reached hurricane force. The storm surge carried CHIOS BEAUTY across the river, where it allided with the Plaintiffs' barges and grounded several tugboats."
< br /> Crescent Towing & Salvage Co., Inc., __ F.3d at __.



In disposing of the case, the federal court "held a five-day bench trial." The result was a finding for the plaintiff. The court "credited the testimony of Plaintiffs' expert that CHIOS BEAUTY 'should not have entered the Port of New Orleans with Hurricane Katrina predicted to strike New Orleans.'" The judge also concluded that the "'weather information'" the defendant used in entering the port "was grossly insufficient in scope," so that the defendant's "understanding of the weather information was ... inadequate.' The district court determined that Defendants 'had ample time and information to know not to endanger the vessel by bringing it into the Port of New Orleans.' Based on these findings, the district court concluded that Defendants had been negligent 'by failing to prudently monitor and interpret the available weather information concerning Hurricane Katrina and for sailing the vessel into the Port of New Orleans and directly into the path of Hurricane Katrina' when there [had been] sufficient time to divert to a safe port in the western Gulf of Mexico." Crescent Towing & Salvage Co., Inc., __ F.3d at __.

In appealing this result, the defendants challenged the basis of testimony provided by the plaintiffs' navigation expert. The expert had been "asked to opine whether it was negligent to proceed to New Orleans in the face of advisories forecasting a landfall" of the hurricane in the New Orleans area. "The expert replied that it was negligent and the district court credited this testimony. The Defendants argue[d] that this opinion was not based on 'sufficient facts or data' within the meaning of Rule 702 of the Federal Rules of Evidence, because the advisories do not forecast a direct hit on New Orleans.... This finding of a likely 'direct hit' was also critical to the district court's ultimate finding that [defendant's agent] was negligent 'by failing to prudently monitor and interpret the available weather information concerning Hurricane Katrina and for sailing the vessel into the Port of New Orleans and directly into the path of Hurricane Katrina.'”



Crescent Towing & Salvage Co., Inc., __ F.3d at __ (footnote omitted).

The circuit found no error in admitting the evidence. It noted that the advisories that had been posted, "especially Advisory 16-the last one issued before CHIOS BEAUTY entered the Mississippi-clearly forecast the center of Hurricane Katrina passing near or directly over New Orleans. These advisories are obviously predictions and are subject to uncertainty. But they were the best available forecast of Katrina's path at the time [defendant's agent] decided to proceed to New Orleans. We affirm the judgment of the district court as to its finding of a predicted “direct hit” on New Orleans, its factual findings based on this finding, and the ultimate finding of negligence to the extent that it relies upon this finding." Crescent Towing & Salvage Co., Inc., __ F.3d at __ (footnote omitted).

The expert's assessment of the negligence of the defendant turned on whether the defendant had knowledge and appreciation of a weather prediction. This element of uncertainty did not undermine the expert evidence. Uncertainty, if shared by those in the field, and shared by the expert, provides a solid basis moving forward.

Federal Rules of Evidence
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