Court Takes Judicial Notice of Temperature and Heat Index in Survival/Wrongful Death Action of Seaman. Precludes Use of Coast Guard Report
Deakle v. Westbank Fishing, LLC
2021 U.S. Dist. LEXIS 171834 *, 2021 WL 3722946 (E.D. La., Sept. 10, 2021, Vance, J.
Bryan Urby was employed on F/V MARIA C on June 3, 2019 when he began to show signs of heat distress. He was airlifted to a hospital in New Orleans but was pronounced dead. Suit was filed by the personal representative as a survival action under the Jones Act as well as a wrongful death claim under both the Jones Act and Death on the High Seas Act. (Claims under Louisiana law, for maintenance and cure, punitive damages for failure to pay maintenance and cure, as well as claims by another party neither married to nor a dependent of the decedent were dismissed by the court previously.)[1]
Judge Vance addressed two motions in the opinion. The first was the plaintiff’s motion for the court to take judicial notice of the temperature in Galliano, La. on the day of the death as well as the heat index based on Nat'l Weather Serv., Heat Forecast Tools.[2] Judge Vance discussed the legal standard for judicial notice and granted the motion to take judicial notice of the temperature in Galliano, La. as well as the heat index ostensibly on the basis the information is from a government agency.[3] She denied taking judicial notice of the qualitative risk assessment in the charts.[4]
The second motion was by the defendant to exclude the use of any Coast Guard materials at trial. Again, Judge Vance discussed the relevant statute which prohibits use of any part of a casualty report in any proceeding other than an administrative proceeding brought by the U.S. and notes courts have interpreted the statute broadly.[5] She granted the motion to exclude the any portion of the Coast Guard file, even for impeachment, including “its findings of fact, opinions, recommendations, deliberations, and conclusions.”[6] In addition, she precluded the use of the Coast Guard file by any expert who "may not refer to, rely on, or substantially base their testimony on the findings contained in the Coast Guard report.”[7]
[1] See Deakle v. Westbank Fishing, LLC, 2021 U.S. Dist. LEXIS 158587 *, 2021 WL 3722946 (E.D. La. Aug, 23, 2021, Vance, J.).
[2] 2021 U.S. Dist. LEXIS 171834 at * 2-3.
[3] Id. at *6-7.
[4] Id. at *10-11.
[5] Id. at *12.
[6] Id. at *13.
[7] Id. at *14.
