SUSIE MORGAN, District Judge.
Before the Court is a motion for reconsideration filed by Plaintiff, Wren Cordes ("Plaintiff").
As alleged in Plaintiff's complaint, Plaintiff is employed with Cooper/T. Smith Corporation ("Cooper/T. Smith") as a boat operator and line handler. On November 14, 2011, Plaintiff was receiving bow mooring lien from the tanker M/T OVERSEAS YELLOWSTONE (the "vessel") while the vessel was attempting to dock at the Ergon Terminal on the Mississippi River in Hymel, Louisiana. According to Plaintiff, the "line became tangled[,] causing the wench to retrieve the line rather than pay out the line and further causing the shackle welded to the end of the line to spin from the dock wench and strike [P]laintiff in the hand."
This Court entered a scheduling order in accordance with Rule 16 of the Federal Rules of Civil Procedure on November 26, 2012.
Plaintiff did not retain a marine safety expert within the deadlines set forth in the Court's scheduling order. As a result, Plaintiff moved in limine to exclude Capt. Campana's testimony under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and its progeny.
Plaintiff argues the Court should reconsider its prior order because Capt. Campana's opinions are not reliable. A motion for reconsideration that is filed within twenty-eight days of entry of an order is considered a motion to alter or amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Waites v. Lee Cnty., Miss., 498 F. App'x 401, 403-04 (5th Cir. Nov. 26, 2012) (citing Fed. R. Civ. P. 59(e); Williams v. Thaler, 602 F.3d 291, 303 n.7 (5th Cir.2010); Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998); Templet v. HydroChem Inc., 367 F.3d 473, 483 (5th Cir. 2004)). Motions for reconsideration must "clearly establish either a manifest error of law or fact or must present newly discovered evidence. These motions cannot be used to raise arguments which could, and should, have been made before the judgment issued. Moreover, they cannot be used to argue a case under a new legal theory." Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). A district court may grant a motion for reconsideration under Rule 59(e) only due to "(1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice." Arrieta v. Local 745 of Int'l. Broth. of Teamsters, 445 F. App'x 760, 762 (5th Cir. Oct. 18, 2011) (citing In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002)).
Plaintiff does not address the standards he must meet in order to succeed on a Rule 59(e) motion for reconsideration. Generally, Plaintiff argues that the Court improperly failed (1) to consider the affidavit testimony submitted by Joseph Perez ("Perez") and (2) to act as a gatekeeper to ensure that Capt. Campana's expert testimony is reliable. As Plaintiff does not appear to argue that there has been an intervening change in controlling law or that he has discovered new evidence which was not previously available, the Court will consider Plaintiff's arguments as urging the Court to grant relief due the need to correct a clear error of law.
With respect to Plaintiff's first argument that the Court improperly failed to consider the Perez affidavit, Plaintiff's reasoning is unpersuasive. Plaintiff contends the Court's decision to not consider the Perez affidavit is "flawed because [P]laintiff had no way of knowing [OSG] intended to hire an expert."
OSG did not have any duty to disclose Capt. Campana's identity prior to the time OSG decided he would testify as an expert witness at trial. See Ohio Management, LLC v. James River Ins. Co., 2006 WL 1985962, at *2 (E.D. La. July 13, 2006) (Knowles, M.J.) (denying motion to compel disclosure of the identities of any consulting and/or non-testifying experts absent a showing of exceptional circumstances under Rule 26(b)(4)(D)). OSG represents to the Court that counsel made the strategic decision to call Capt. Campana at trial in mid-March 2013. Given that OSG complied with the Court's scheduling order, thereby delivering Capt. Campana's report and disclosing his identity by March 19, 2013, OSG's actions were proper. Likewise, Plaintiff may not circumvent the Court's scheduling order and request the Court to consider an affidavit of a witness that was not timely disclosed on Plaintiff's witness list. Consequently, the Court did not make a manifest error of law by declining to consider the Perez affidavit when ruling on Plaintiff's original motion in limine. For the same reasons, the Court will not consider the Perez affidavit at this time. As a result, Plaintiff's argument that he "had no way of knowing" OSG would retain a testifying expert is unavailing.
Second, Plaintiff argues the Court failed to act as a gatekeeper, under Daubert and Rule 702, to ensure that Capt. Campana's conclusions are reliable. Plaintiff submits that Capt. Campana's conclusions have not been subjected to scientific testing and, as a result, he should not be permitted to testify. In essence, Plaintiff contends the Court made a clear error of law in declining to grant Plaintiff's motion in limine to exclude Capt. Campana's testimony.
Plaintiff's assertion that the Court did not satisfy its gatekeeping duty is also unpersuasive. As this Court noted in its prior order regarding Capt. Campana, Daubert's reliability inquiry is a "flexible one" and a "court has discretion to consider other facts it deems relevant." Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Whether or not an expert's conclusions have been subjected to scientific testing is not dispositive as to the reliability of the expert's testimony. In ruling on Plaintiff's prior motion in limine, the Court considered Capt. Campana's extensive experience and the evidence he reviewed as sufficient bases for his conclusions.
Capt. Campana's testimony will be helpful to the Court in understanding the evidence before it and determining facts in issue, thus he will be permitted to testify regarding the standards pertaining to procedures and practices of vessel mooring operations. The Court reiterates its prior instructions to Plaintiff: "Any alleged deficiency regarding the bases and sources of Capt. Campana's opinions go to the weight to be afforded to his opinions, rather than their admissibility. Plaintiff may subject Capt. Campana to vigorous cross-examination in an effort to diminish any weight the Court gives his opinions when making its findings of fact."
In sum, contrary to Plaintiff's assertions, the Court has carefully considered Capt. Campana's intended testimony and determined that it satisfies Daubert and Rule 702. In addition, the Court has instructed OSG regarding impermissible subjects on which Capt. Campana may not opine. Thus, Plaintiff has failed to show that the Court made a clear error of law in denying Plaintiff's motion in limine to exclude Capt. Campana's testimony. Because the Court finds that Plaintiff has not presented any legally cognizable basis for relief pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, or otherwise, the Court will not reconsider its prior ruling.
Accordingly, for the reasons set forth above,