Thursday, December 3, 2020
Eastern District of Louisiana Finds Representatives of Yacht Companies Can Testify as Lay Witnesses About What They Would Charge For Certain Work
Federal Rule of Evidence 701 states that
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Subsection (c) was added in 2000
to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness’ testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
That said, there's an important exception to this prohibition to "proffering an expert in lay witness clothing."
The lawsuit in Trevelyn Enterprises, L.L.C. v. SeaBrook Marine, L.L.C., 2020 WL 6822555 (E.D.La. 2020),
concerns repair and maintenance work performed by SeaBrook Marine, L.L.C. (“SeaBrook”) on the M/Y FAIR SKIES, a 90 foot yacht owned by Trevelyn Enterprises, L.L.C. (“Trevelyn”), pursuant to a contract entered into on June 5, 2018. This work included painting the bottom hull. Trevelyn alleges that SeaBrook did not perform the work in a workmanlike manner and that SeaBrook also damaged the vessel.
To support their defense, the defendants listed representatives of Saunders Yachtworks, Barber Marina, Miller Marine Yacht Service, Inc., and Steiner Shipyard as lay witnesses who will testify "on the factual question of what their companies would charge for certain work, based on the witnesses' particularized knowledge resulting from their position in their businesses." In response, the plaintiff "moved to exclude any testimony by these witnesses arguing that such testimony constitutes expert testimony for which no expert report has been provided."
The court disagreed, concluding that
This type of lay opinion testimony, permitted by Federal Rule of Evidence 701, is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in his business. Tampa Bay Shipbuilding, 320 F.3d at 1222. It is not based upon the type of scientific, technical, or other specialized knowledge contemplated by Rule 702....
In this case, the proposed witnesses will be testifying on the factual question of what their companies would charge for certain work, based on the witnesses' particularized knowledge resulting from their position in their businesses. Assuming a proper foundation is laid, this testimony is admissible under Rule 701. Accordingly, the motion to exclude testimony of unnamed shipyard representatives is denied.
This is consistent with the Advisory Committee's Note to the 2000 amendment to Federal Rule of Evidence 701, which states
The amendment is not intended to affect the “prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.”...
For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. Similarly, courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established. See, e.g., United States v. Westbrook, 896 F.2d 330 (8th Cir. 1990) (two lay witnesses who were heavy amphetamine users were properly permitted to testify that a substance was amphetamine; but it was error to permit another witness to make such an identification where she had no experience with amphetamines). Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702.