NEW ORLEANS (Legal Newsline) - Louisiana’s highest court reversed a $6 million verdict stemming from the collision of two of the state’s most important industries, oyster fishing and commercial shipping. The court cited unreliable testimony from a plaintiff expert who lacked the proper background to testify that silt from a grounded tugboat decimated oyster production across a large area.
Plaintiff Marty Melerine held about 500 acres of oyster leases in the shallow waters of Christmas Lake near New Orleans in 2016 when the tugboat tried to cut across the oyster grounds for repairs on a malfunctioning engine. The 60-foot craft, with twin propellers nearly four feet in diameter, got stuck on an oyster “reef” and tried to free itself with the thrust of the engine but failed, waiting until high tide floated the boat the following day.
Soon after the grounding, Melerine hired Dr. Edwin Cake, an oyster biologist, to inspect the oyster beds for damage. Cake waited two months to visit the site for the first time, however, and returned three months later with a scuba diver who took samples from about eight square meters of the bottom.
He counted the dead oysters he found and estimated that physical damage from the tugboat and silt scattered by its propeller had reduced production by some 160,000 sacks of oysters. At $60 a sack minus a $12.50 harvesting cost, lost profits from the grounding totaled more than $7.6 million, Cake testified.
The tugboat’s owner, Tom’s Marine & Salvage, and its insurer, Allianz Global Risks, sought to disqualify Cake as an expert, since he had no training or expertise in hydrology or sedimentology. Cake also relied upon guidelines established by the Oyster Lease Damage Evaluation Board, which mediates disputes between oyster fishers and the oil and gas industry, but he didn’t have a pre-accident survey of the oyster beds as required under the OLDEB rules.
The trial judge refused to disqualify the plaintiff’s expert and a jury voted 10-2 to award more than $6 million in damages for the lost production. The Louisiana Supreme Court reversed and remanded for a new trial in a March 24 decision, ruling that oyster fishers cannot use OLDEB methodology without a baseline survey to establish the health of the oyster bed before it was damaged.
“Without those surveys, there is no comparison, and the methodology is unworkable,” the court ruled.
The opinion by Justice William J. Crain also admonishes the trial judge for failing to fulfill the gatekeeper role for expert testimony required under the U.S. Supreme Court’s Daubert decision. While Cake is a respected expert on oyster biology, the court found, his methodology for determining the value of damages caused by the tugboat was deeply flawed.
Cake admitted he didn’t do a pre-accident survey but said he could “piece together what the lease looked like beforehand.” He estimated the site needed almost $1.3 million worth of crushed lime and concrete to be restored.
Cake also multiplied the number of dead oysters from a sample of less than on hundredth of a percent of the lease across the entire acreage, as opposed to state guidelines limiting the calculation to the damaged acres. As a result, Dr. Cake estimated production was reduced by more than 160,000 sacks of oysters worth millions of dollars.
Melerine testified the reef was “chock full of oysters” before the accident but went into a “tailspin” after. Melerine’s tax records, however, showed gross income in the three years before the grounding was between $157,000 and $410,000. As the leaseholder, he gets 50% of the sales of oysters harvested on his grounds. Using Cake’s methods, the court found, production in the years before the accident should have been at least nine times higher.
In a concurrence, Justice Jefferson D. Hughes agreed with the remand order but suggested Cake’s testimony wasn’t entirely unreliable.
“Dr. Cake has been studying oysters for over 40 years, and while he may not have a college degree in sedimentology or hydrology, we are dealing with an oyster bed, not an engineering project,” the justice wrote. “There are aspects of Dr. Cake’s testimony that would be helpful to the jury.”