The United States District Court, W.D. Pennsylvania in the case of

THOMAS JAMES NEWILL, v. CAMPBELL TRANSPORTATION COMPANY, INC. No. 2:12-cv-1344 dealt with the testimony of the expert Smith on the seaworthiness of a barge.

The court found that the expert did not improperly comment on the credibility of witnesses when he stated:

Neither men [deckhands Woodling or Ward of the previous watch] slipped or fell during their watch, and did not feel a need to use shovels and/or brooms to clear, nor place salt or any other material on the decks of the barges to mitigate a situation they did not judge to exist . . . .d. This information above contradicts the Plaintiff.

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The previous watch did not engage in any clearing actions because they felt none were needed. They did not experience any trips or falls and performed their duties appropriately.

The court found:

Plaintiff, in turn, requests that Smith be precluded from testifying as to “speculative factual calls or witness credibility determinations.” Having reviewed the cited portions of Smith’s testimony, however, the Court does not find that they constitute impermissible assessments of the credibility of witnesses. “There is a critical distinction between an expert testifying that a disputed fact actually occurred or that one witness is more credible than another and an expert giving an opinion based upon factual assumptions, the validity of which are for the jury to determine. The former is manifestly improper, the latter is not.” Richman v. Sheahan, 415 F. Supp. 2d 929, 942 (N.D. Ill. 2006). The challenged portions of Smith’s report fall squarely in the latter category. He is permitted to assume that the conditions on the barge were as described in the testimony of Woodling and Ward. As a result, this aspect of Plaintiff’s motion is DENIED. SO ORDERED.