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CAUSE NO. 41522
VANDAVEN JOHNSON IN THE DISTRICT COURT OF
Plaintiff,
BATTLEGROUND OIL SPECIALTY HARRIS COUNTY, T E X A S
TERMINAL COMPANY, LLC; KINDER
MORGAN BATTLEGROUND OIL, LLC;
KINDER MORGAN, INC.; BOONE
TOWING, INC.; and ATLANTIC
RICHFIELD COMPANY
Defendant JUDICIAL DISTRICT
BATTLEGROUND OIL SPECIALTY TERMINAL COMPANY, LLC
RESPONSE TO MOTION TO STRIKE EXPERT DAVID MARTYN
TO THE HONORABLE JUDGE OF THIS COURT:
Defendant, Battleground Oil Specialty Terminal Company, LLC BOSTCO , files its
Response Industrial Products Limited, LLC’s Industrial Products and Eagle Ship Supply,
Inc.’s (“Eagle Ship”) Motion to Strike BOSTCO’s Designation of Expert David Martyn
BOSTCO respectfully would show the Court the following:
RELEVANT FACTUAL BACKGROUND
The Court should deny Industrial Products’ and Eagle Ship’s Motions to Strike
BOSTCO’s designated expert Dave Martyn. Mr. Martyn’s designation was timely and adequate,
Mr. Martyn’s opinions have been fully obtained in deposition, and there is no unfair surprise to
any party regarding his opinions.
As the Court is well aware, Plaintiff Vandaven Johnson brought claims against
BOSTCO and several others for alleged personal injuries after falling on a gangway. Among
Plaintiff’s claims are that BOSTCO was negligent for failing to provide a safe means of ingress
and egress, failing to provide a safe dock and gangway, failing to adequately warn about safety
hazards, failing to properly maintain its gangway, placing the gangway at an unreasonably steep
angle, and using a rope handrail. Plaintiff also recently sought leave to amend his pleading that
BOSTCO manufactured and/or designed the subject gangway. One of BOSTCO’s many
defenses to Plaintiff’s claims, even before Industrial Products was brought into the suit, is that
BOSTCO was never provided any warnings not to use the gangway it was provided as a
gangway. This is a crucial defense BOSTCO has and continues to assert. It also, therefore,
became one of BOSTCO’s basis for its cross-claims against Defendant Werner Co., Defendant
Eagle Ship, and Third Party Defendant Industrial Products. All of the defenses and claims are
inextricably intertwined.
II. ARGUMENTS & AUTHORITIES
3. BOSTCO timely designated its expert, David Martyn, on August 18, 2020 in
accordance with the Court’s Docket Control Order.1 BOSTCO did not provide a report for Mr.
Martyn because neither the Docket Control Order nor the Texas Rules of Civil Procedure require
as much. Notably, many other experts designated in this case have not produced reports.
BOSTCO’s designation of Mr. Martyn was proper under the Texas Rules of Civil Procedure and
it was made clear the matters on which he would opine — “the adequacy of warnings, notices,
and/or instructions provided to the gangway customer and/or user.”2 Out of an abundance of
caution, BOSTCO further supplemented its designation on August 25, 2020 to clarify that Mr.
Martyn “will opine on the inadequacy of warnings, to the extent there even were any warnings,
provided to BOSTCO regarding use of the product sold and provided to BOSTCO by Eagle
1
Exhibit A, Docket Control Order.
2
Exhibit B, BOSTCO’s Sixth Supplemental Designation of Expert Witnesses.
2
Ship/Industrial Products/Werner as a gangway.”3 The designation is straight forward and clear
that Mr. Martyn will opine on the adequacy of warnings related to the gangway.
4. Importantly, Industrial Products and Eagle Ship cannot claim and cannot establish
any unfair surprise or prejudice by Mr. Martyn’s designation and/or opinions.4 As stated earlier,
one of BOSTCO’s many defenses to Plaintiff’s claims, of which all parties have been well aware
throughout discovery and depositions, is that BOSTCO was never provided any warnings not to
use the gangway it was provided as a gangway.5 BOSTCO’s discovery responses, discovery
requests to other parties, and deposition testimony is evidence of same.6 The court has broad
discretion in determining whether to permit an expert witness to testify and the record and
evidence establishes that all parties were on notice of Mr. Martyn’s opinions and the general
substance of those opinions. There is absolutely no unfair surprise or prejudice to any party.
Industrial Products and Eagle Ship had ample notice as to Plaintiff’s and BOSTCO’s claims and
defenses and whether Industrial Products and Eagle Ship needed to designate expert witnesses in
this case.
5. Despite all of the prior discovery and depositions that made clear the adequacy of
warnings was one of BOSTCO’s many defenses, Mr. Martyn was also recently deposed on
October 9, 2020.7 Counsel for all parties were present during Mr. Martyn’s deposition and were
afforded an opportunity to cross examine him regarding his opinions. Mr. Martyn’s opinions, as
3
Exhibit C, BOSTCO’s Seventh Supplemental Designation of Expert Witnesses.
4
See TEX. R. CIV. P. 193.6; see e.g. Llanes v. Davila, 133 S.W.3d 635, 640 (Tex. App.—Corpus Christi 2003, pet.
denied); City of El Paso v. Parsons, 353 S.W.3d 215, 230 (Tex. App.—El Paso 2011, no pet.); In re M.H., 319
S.W.3d 137, 147-48 (Tex. App.—Waco 2010, no pet.) ; Beard Family P'ship v. Commercial Indem. Ins. Co., 116
S.W.3d 839, 850 (Tex. App.—Austin 2003, no pet.); Best Ind. Unif. Supply Co. v. Gulf Coast Alloy Welding, Inc.,
41 S.W.3d 145, 146-49 (Tex. App.-Amarillo 2000, pet. denied).
5
See e.g., Exhibit E, BOSTCO’s Third Supplemental Responses to Requests for Disclosure served on October 19,
2018; Exhibit F, BOSTCO’s Fourth Supplemental Responses to Requests for Disclosure served on August 2, 2019;
Exhibit G, BOSTCO’s First Supplemental Answers to Werner’s Interrogatories served on December 6, 2019;
Exhibit H, BOSTCO’s Requests for Production to Industrial Products served on May 18, 2020; Exhibit I,
BOSTCO’s Interrogatories to Industrial Products served on May 18, 2020.
6
See e.g., id.
7
Exhibit D, Rough Draft of Mr. Martyn’s Deposition Transcript.
3
specifically stated in BOSTCO’s designation of expert witnesses, were fully explored. He opined
on the “adequacy of warnings, notices, and/or instructions provided to the gangway customer
and/or user.” There can certainly be no unfair surprise or prejudice given that all parties have Mr.
Martyn’s deposition testimony and were given the opportunity to depose him.
6. Finally, Eagle Ship’s Motion to Strike Mr. Martyn is untimely and should be
struck from the record. The Docket Control Order’s deadline to file motions challenging or to
exclude expert testimony was September 18, 2020.8 Eagle Ship, who is a named Defendant in
this case, did not file its Motion to Strike Mr. Martyn until September 23, 2020.
PRAYER
Defendant, Battleground Oil Specialty Terminal Company, LLC, respectfully requests
that the Court deny Industrial Products Limited, LLC’s and Eagle Ship Supply, Inc.’s Motions to
Strike Dave Martyn. BOSTCO further prays for all such legal and equitable relief to which it
may be justly entitled.
Respectfully submitted,
GALLOWAY, JOHNSON, TOMPKINS
BURR & SMITH
/s/McKenzie L. Brown
Adraon D. Greene
State Bar No. 24014533
agreene@gallowaylawfirm.com
Thomas J. Smith
State Bar No. 00788934
tsmith@gallowaylawfirm.com
McKenzie L. Brown
State Bar No. 24086846
mbrown@gallowaylawfirm.com
1301 McKinney, Suite 1400
Houston, Texas 77010
Phone: (713) 599-0700
Fax: (713) 599-0777
8
Exhibit A, Docket Control Order.
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
by and through the Court approved electronic filing manager via email to participating parties
and/or via hand delivery, and/or facsimile and/or certified mail, return receipt requested and/or
U.S. First Class Mail to all known counsel of record on this 12th day of October, 2020, as
follows:
Jason A. Itkin Frank A. Piccolo
Cory D. Itkin Kenneth H. Tribuch
Ryan S. MacLeod CHAFFE MCCALL, LLP
Bradford Hendrickson 801 Travis Street, Suite 1910
ARNOLD & ITKIN, LLP Houston, TX 77002
6009 Memorial Drive Counsel for Defendant, Boone Towing, Inc.
Houston, Texas 77007
Counsel for Plaintiff Don Swaim
D. Todd Parrish
David M. Flotte CUNNINGHAM SWAIM, LLP
Marcelle P. Mouledoux 7557 Rambler Road, Suite 400
Salley, Hite, Mercer & Resor, LLC Dallas, Texas 75231
365 Canal Street, Suite 1710 Counsel for Defendant Werner Co.
New Orleans, LA 70130
Counsel for Defendant, American Steven E. Psarellis
River Transportation Co., LLC STEVEN E. PSARELLIS, APLC.
365 Canal Street, Suite 1660
Wade R. Quinn New Orleans, Louisiana 70130
Ramey, Chandler, Quinn & Zito, PC Counsel for Defendant Eagle Ship Supply,
750 Bering Drive, Suite 600 Inc.
Houston, TX 77057
Counsel for Defendant, American John T. Kovach
River Transportation Co., LLC ROSEN & KOVACH, PLLC
214 Morton Street
Mark J. Dyer Richmond, Texas 77469
Alan Moore Counsel for Defendant Eagle Ship Supply,
Martin, Disiere, Jefferson & Wisdom Inc.
9111 Cypress Waters Blvd, Ste 250
Dallas, Texas 75019
Counsel for Third Party Defendant,
Industrial Products Limited, LLC
/s/ McKenzie L. Brown
McKenzie L. Brown
5
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CAUSE NO. 41522 VANDAVEN JOHNSON IN THE DISTRICT COURT OF Plaintiff, BATTLEGROUND OIL SPECIALTY HARRIS COUNTY, T E X A S TERMINAL COMPANY, LLC; KINDER MORGAN BATTLEGROUND OIL, LLC; KINDER MORGAN, INC.; BOONE TOWING, INC.; and ATLANTIC RICHFIELD COMPANY Defendant JUDICIAL DISTRICT BATTLEGROUND OIL SPECIALTY TERMINAL COMPANY, LLC RESPONSE TO MOTION TO STRIKE EXPERT DAVID MARTYN TO THE HONORABLE JUDGE OF THIS COURT: Defendant, Battleground Oil Specialty Terminal Company, LLC BOSTCO , files its Response Industrial Products Limited, LLC’s Industrial Products and Eagle Ship Supply, Inc.’s (“Eagle Ship”) Motion to Strike BOSTCO’s Designation of Expert David Martyn BOSTCO respectfully would show the Court the following: RELEVANT FACTUAL BACKGROUND The Court should deny Industrial Products’ and Eagle Ship’s Motions to Strike BOSTCO’s designated expert Dave Martyn. Mr. Martyn’s designation was timely and adequate, Mr. Martyn’s opinions have been fully obtained in deposition, and there is no unfair surprise to any party regarding his opinions. As the Court is well aware, Plaintiff Vandaven Johnson brought claims against BOSTCO and several others for alleged personal injuries after falling on a gangway. Among Plaintiff’s claims are that BOSTCO was negligent for failing to provide a safe means of ingress and egress, failing to provide a safe dock and gangway, failing to adequately warn about safety hazards, failing to properly maintain its gangway, placing the gangway at an unreasonably steep angle, and using a rope handrail. Plaintiff also recently sought leave to amend his pleading that BOSTCO manufactured and/or designed the subject gangway. One of BOSTCO’s many defenses to Plaintiff’s claims, even before Industrial Products was brought into the suit, is that BOSTCO was never provided any warnings not to use the gangway it was provided as a gangway. This is a crucial defense BOSTCO has and continues to assert. It also, therefore, became one of BOSTCO’s basis for its cross-claims against Defendant Werner Co., Defendant Eagle Ship, and Third Party Defendant Industrial Products. All of the defenses and claims are inextricably intertwined. II. ARGUMENTS & AUTHORITIES 3. BOSTCO timely designated its expert, David Martyn, on August 18, 2020 in accordance with the Court’s Docket Control Order.1 BOSTCO did not provide a report for Mr. Martyn because neither the Docket Control Order nor the Texas Rules of Civil Procedure require as much. Notably, many other experts designated in this case have not produced reports. BOSTCO’s designation of Mr. Martyn was proper under the Texas Rules of Civil Procedure and it was made clear the matters on which he would opine — “the adequacy of warnings, notices, and/or instructions provided to the gangway customer and/or user.”2 Out of an abundance of caution, BOSTCO further supplemented its designation on August 25, 2020 to clarify that Mr. Martyn “will opine on the inadequacy of warnings, to the extent there even were any warnings, provided to BOSTCO regarding use of the product sold and provided to BOSTCO by Eagle 1 Exhibit A, Docket Control Order. 2 Exhibit B, BOSTCO’s Sixth Supplemental Designation of Expert Witnesses. 2 Ship/Industrial Products/Werner as a gangway.”3 The designation is straight forward and clear that Mr. Martyn will opine on the adequacy of warnings related to the gangway. 4. Importantly, Industrial Products and Eagle Ship cannot claim and cannot establish any unfair surprise or prejudice by Mr. Martyn’s designation and/or opinions.4 As stated earlier, one of BOSTCO’s many defenses to Plaintiff’s claims, of which all parties have been well aware throughout discovery and depositions, is that BOSTCO was never provided any warnings not to use the gangway it was provided as a gangway.5 BOSTCO’s discovery responses, discovery requests to other parties, and deposition testimony is evidence of same.6 The court has broad discretion in determining whether to permit an expert witness to testify and the record and evidence establishes that all parties were on notice of Mr. Martyn’s opinions and the general substance of those opinions. There is absolutely no unfair surprise or prejudice to any party. Industrial Products and Eagle Ship had ample notice as to Plaintiff’s and BOSTCO’s claims and defenses and whether Industrial Products and Eagle Ship needed to designate expert witnesses in this case. 5. Despite all of the prior discovery and depositions that made clear the adequacy of warnings was one of BOSTCO’s many defenses, Mr. Martyn was also recently deposed on October 9, 2020.7 Counsel for all parties were present during Mr. Martyn’s deposition and were afforded an opportunity to cross examine him regarding his opinions. Mr. Martyn’s opinions, as 3 Exhibit C, BOSTCO’s Seventh Supplemental Designation of Expert Witnesses. 4 See TEX. R. CIV. P. 193.6; see e.g. Llanes v. Davila, 133 S.W.3d 635, 640 (Tex. App.—Corpus Christi 2003, pet. denied); City of El Paso v. Parsons, 353 S.W.3d 215, 230 (Tex. App.—El Paso 2011, no pet.); In re M.H., 319 S.W.3d 137, 147-48 (Tex. App.—Waco 2010, no pet.) ; Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 850 (Tex. App.—Austin 2003, no pet.); Best Ind. Unif. Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 146-49 (Tex. App.-Amarillo 2000, pet. denied). 5 See e.g., Exhibit E, BOSTCO’s Third Supplemental Responses to Requests for Disclosure served on October 19, 2018; Exhibit F, BOSTCO’s Fourth Supplemental Responses to Requests for Disclosure served on August 2, 2019; Exhibit G, BOSTCO’s First Supplemental Answers to Werner’s Interrogatories served on December 6, 2019; Exhibit H, BOSTCO’s Requests for Production to Industrial Products served on May 18, 2020; Exhibit I, BOSTCO’s Interrogatories to Industrial Products served on May 18, 2020. 6 See e.g., id. 7 Exhibit D, Rough Draft of Mr. Martyn’s Deposition Transcript. 3 specifically stated in BOSTCO’s designation of expert witnesses, were fully explored. He opined on the “adequacy of warnings, notices, and/or instructions provided to the gangway customer and/or user.” There can certainly be no unfair surprise or prejudice given that all parties have Mr. Martyn’s deposition testimony and were given the opportunity to depose him. 6. Finally, Eagle Ship’s Motion to Strike Mr. Martyn is untimely and should be struck from the record. The Docket Control Order’s deadline to file motions challenging or to exclude expert testimony was September 18, 2020.8 Eagle Ship, who is a named Defendant in this case, did not file its Motion to Strike Mr. Martyn until September 23, 2020. PRAYER Defendant, Battleground Oil Specialty Terminal Company, LLC, respectfully requests that the Court deny Industrial Products Limited, LLC’s and Eagle Ship Supply, Inc.’s Motions to Strike Dave Martyn. BOSTCO further prays for all such legal and equitable relief to which it may be justly entitled. Respectfully submitted, GALLOWAY, JOHNSON, TOMPKINS BURR & SMITH /s/McKenzie L. Brown Adraon D. Greene State Bar No. 24014533 agreene@gallowaylawfirm.com Thomas J. Smith State Bar No. 00788934 tsmith@gallowaylawfirm.com McKenzie L. Brown State Bar No. 24086846 mbrown@gallowaylawfirm.com 1301 McKinney, Suite 1400 Houston, Texas 77010 Phone: (713) 599-0700 Fax: (713) 599-0777 8 Exhibit A, Docket Control Order. 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served by and through the Court approved electronic filing manager via email to participating parties and/or via hand delivery, and/or facsimile and/or certified mail, return receipt requested and/or U.S. First Class Mail to all known counsel of record on this 12th day of October, 2020, as follows: Jason A. Itkin Frank A. Piccolo Cory D. Itkin Kenneth H. Tribuch Ryan S. MacLeod CHAFFE MCCALL, LLP Bradford Hendrickson 801 Travis Street, Suite 1910 ARNOLD & ITKIN, LLP Houston, TX 77002 6009 Memorial Drive Counsel for Defendant, Boone Towing, Inc. Houston, Texas 77007 Counsel for Plaintiff Don Swaim D. Todd Parrish David M. Flotte CUNNINGHAM SWAIM, LLP Marcelle P. Mouledoux 7557 Rambler Road, Suite 400 Salley, Hite, Mercer & Resor, LLC Dallas, Texas 75231 365 Canal Street, Suite 1710 Counsel for Defendant Werner Co. New Orleans, LA 70130 Counsel for Defendant, American Steven E. Psarellis River Transportation Co., LLC STEVEN E. PSARELLIS, APLC. 365 Canal Street, Suite 1660 Wade R. Quinn New Orleans, Louisiana 70130 Ramey, Chandler, Quinn & Zito, PC Counsel for Defendant Eagle Ship Supply, 750 Bering Drive, Suite 600 Inc. Houston, TX 77057 Counsel for Defendant, American John T. Kovach River Transportation Co., LLC ROSEN & KOVACH, PLLC 214 Morton Street Mark J. Dyer Richmond, Texas 77469 Alan Moore Counsel for Defendant Eagle Ship Supply, Martin, Disiere, Jefferson & Wisdom Inc. 9111 Cypress Waters Blvd, Ste 250 Dallas, Texas 75019 Counsel for Third Party Defendant, Industrial Products Limited, LLC /s/ McKenzie L. Brown McKenzie L. Brown 5