870 F.3d 915
9th Cir.2017Background
- Roger Murray, a longshoreman, received a low-voltage electrical shock aboard the M/V APL IRELAND when rebar he held contacted a ship-provided floodlight; he experienced neurological and other symptoms thereafter.
- Murray sued under the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. § 905(b)), alleging the vessel owner negligently turned over the ship with a faulty floodlight.
- A jury awarded Murray over $3.3 million and his wife $270,000 for loss of consortium; the district court denied the vessel owner’s JMOL, new trial, and remittitur motions.
- On appeal the vessel owner challenged: (1) the jury instruction on the vessel owner’s turnover duty, (2) admission of Dr. Michael Morse’s scientific testimony about diffuse low-voltage electrical injury (Daubert), and (3) admission of Murray’s medical experts’ causation opinions.
- The Ninth Circuit majority affirmed: the turnover instruction correctly included a reasonable-inspection component, the district court did not abuse its Daubert gatekeeping with respect to Dr. Morse, and the medical experts’ causation opinions were properly admitted.
- Judge Bea dissented in part, arguing the district court failed to adequately assess testability and error rate for Dr. Morse’s methodology (especially given the uncertain causal mechanism and differences in voltages), and thus abdicated its gatekeeping role.
Issues
| Issue | Plaintiff's Argument (Murray) | Defendant's Argument (Vessel Owner) | Held |
|---|---|---|---|
| Scope of turnover duty under §905(b) | Vessel owner must provide ship/equipment reasonably safe to longshoremen; inspection is part of that duty | Instruction improperly expands duty to inspect, misstates duty as to longshoremen, and creates an ongoing duty | Affirmed — turnover duty includes reasonable inspection, runs to longshoremen, and is temporally limited to turnover |
| Jury instruction wording (who owed duty) | Instruction correctly framed duty to longshoremen and stevedore context | Instruction misstated addressee (longshoremen vs. stevedore) and was objected to | Affirmed — any objection was not preserved with specificity; law supports duty to longshoremen |
| Admissibility of Dr. Morse’s theory (Daubert) | Dr. Morse’s low-voltage/diffuse-injury theory is peer-reviewed, published, recognized in the field, and not developed for litigation; admissible on narrow topic | Theory is untested for this context, mechanism unknown, error rate and testability not analyzed; testimony unreliable and not probative of Murray’s lower-voltage shock | Affirmed (majority) — district court reasonably evaluated reliability (peer review, acceptance, genesis), held a Daubert hearing, and limited the scope; dissent would exclude for insufficient analysis of testability/error rate |
| Admission of medical experts’ causation opinions | Experts used differential diagnosis and opined to a reasonable degree of medical certainty that the shock caused Murray’s injuries | Experts’ opinions were speculative and not more-probable-than-not | Affirmed — experts testified to more-probable-than-not standard and followed acceptable differential-diagnosis methods |
Key Cases Cited
- Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (Sup. Ct.) (articulates vessel owner turnover duty and related duties to stevedores/longshoremen)
- Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92 (Sup. Ct.) (explains duty to warn and ties warning duty to inspection)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (Sup. Ct.) (establishes reliability/flexibility framework for expert testimony under Rule 702)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Sup. Ct.) (extends Daubert gatekeeping and permits case-specific factor application)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (Sup. Ct.) (standard of review for admissibility rulings; deference to district court)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir.) (defines abuse-of-discretion standard for Daubert rulings)
- Hedrick v. Daiko Shoji Co., 715 F.2d 1355 (9th Cir.) (shipowner duty to inspect equipment it supplies before turnover)
- Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir.) (district court must perform gatekeeping and explain Daubert analysis)