Marty Melerine And Oyster Fisheries, Inc. v. Tom's Marine & Salvage, Llc, Tom's Welding, Inc., Triple T Marine, Llc, Captain James Williams, Allianz Global Risks Us Insurance Company, And Allianz Global Corporate And Specialty Se

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #013
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 24th day of March, 2021 are as follows:
BY Crain, J.:
2020-C-00571 MARTY MELERINE AND OYSTER FISHERIES, INC. VS. TOM'S
MARINE & SALVAGE, LLC, TOM'S WELDING, INC., TRIPLE T
MARINE, LLC, CAPTAIN JAMES WILLIAMS, ALLIANZ GLOBAL
RISKS US INSURANCE COMPANY, AND ALLIANZ GLOBAL
CORPORATE AND SPECIALTY SE (Parish of St. Bernard)
REVERSED AND REMANDED. SEE OPINION.
Hughes, J., concurs and assigns reasons.

SUPREME COURT OF LOUISIANA
No. 2020-C-00571
MARTY MELERINE AND OYSTER FISHERIES, INC.
VERSUS
TOM’S MARINE & SALVAGE, LLC, TOM’S WELDING, INC.,
TRIPLE T MARINE, LLC, CAPTAIN JAMES WILLIAMS,
ALLIANZ GLOBAL RISKS US INSURANCE COMPANY, AND
ALLIANZ GLOBAL CORPORATE AND SPECIALTY
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ST. BERNARD
CRAIN, J.
Significant evidentiary issues are presented for review in this litigation
involving alleged damages to leased oyster grounds. Applying well -established
rules of evidence, we find the trial court erred by (1) allowing evidence of a
regulatory method for determining oyster-lease damages applicable only when a pre-
project biological survey is performed, and (2) admitting opinion testimony from an
expert witness that is beyond his expertise and not supported by reliable
methodology. We reverse, vacate, and remand for new trial.
FACTS AND PROCEDURAL HISTORY
On the afternoon of April 9, 2016, a tugboat pushing a barge through the
coastal waters of St. Bernard Parish entered an area known as Christmas Lake,
located northerly from the mouth of the Mississippi River Gulf Outlet. Christmas
Lake is productive oyster grounds and contains several oyster leases marked by poles
extending above the waterline. Down to one engine due to mechanical problems,
the captain tried to navigate the tugboat to Hopedale for repairs. An oyster fisherman
stopped the tugboat and instructed the captain to turn around, emphasizing the
presence of oyster beds and explaining the water was too shallow to travel any
03/24/21

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further. The captain reversed course and turned southwest, entering oyster-lease
grounds held by plaintiff, Marty Melerine.
Moving southwesterly, the tugboat crossed the middle of Melerine’s 140-acre
lease until ground ing on an oyster reef in the southwest corner of the lease. The
captain tried to extricate the tugboat for about 45 minutes by revving the engine in
forward and reverse . According to the captain, he then turned the engine off and
waited for high tide the next day before attempting to move the boat again. Plaintiffs
presented witness testimony suggesting the c aptain revved the engine much longer
than 45 minutes , possibly for hours, and the boat’s satellite tracking information,
known as “AIS,” indicated the boat may have moved 17 feet during the night. 1 At
high tide the next day, April 10, 2016 , the captain freed the tugboat from the reef
with the assistance of Melerine. Following directions from Melerine and another
area oysterman, the captain piloted the tugboat along the southern boundary of the
lease and exited the area.
Shortly after the grounding, Melerine retained Dr. Edwin Cake Jr., an oyster
biologist, to inspect the oyster beds and determine the extent of any damages caused
by the incident. Dr. Cake advised Melerine he preferred to wait “at least six weeks
after the grounding event so that any oysters that were going to die would die during
that time period.” On June 9, 2016, about two months after the grounding, Dr. Cake
first visited the site. The trip was limited to a “preliminary oyster dredging survey”
consisting of dragging an oyster dredge in and around the grounding site. According
to Dr. Cake, the results confirmed “damage had occurred and [oyster] deaths were
occurring.”
Dr. Cake returned on September 2, 2016, about five months after the
grounding. Assisted by a scuba diver, he obtained samples of oysters in and around

1 AIS stands for “automatic identification system,” a coastal tracking system used on ships.

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the grounding site. The diver sampled seven areas, each measuring one square meter
total (1.19 square yards), and collected all of the oysters, dead and alive, in each of
the seven locations. Dr. Cake counted the oysters in each sample and divided them
into three categories based on their maturity: (1) sack oysters, which are fully
developed and ready for market; (2) seed oysters, which are still developing and
measure one to three inches in size; and (3) spat oysters, the youngest and smallest
oysters measuring less than an inch. Based on these samples, after adjusting for
natural mortality, Dr. Cake surmised that each square meter had an average of 45
dead oysters he attributed to the grounding.
Dr. Cake next visited the site on December 16, 2016, over eight months after
the grounding, when he and an assistant “poled” the bottom of the leased areas.
Poling an area involves a person tapping the water bottom with a long pole to
determine whether the bottom is reef, shell, sand, or mud. Working in north-south
transects, they made numerous trips across the lease intermittently poling at points
about 60 feet apart. They also poled an area near the grounding site sub-leased by
Oyster Fisheries, Inc. (OFI) , another plaintiff in this proceeding . Based on the
poling, Dr. Cake concluded the Melerine lease has 78.6 productive acres of oyster
reef, but 34.2 acres were buried by a layer of sediment disbursed by the tugboat’s
propeller. He also surmised the tugboat created a 0.5 acre “trench” at the grounding
site. According to Dr. Cake, the relevant part of the OFI lease has 18.3 productive
acres, but 12.5 acres was covered in sediment disbursed by the tugboat.
Dr. Cake again obtained oyster samples on January 18, 2017, more than nine
months after the grounding. Those eight samples were taken from areas significantly
further away from the grounding site than the September samples but revealed a
higher mortality count. The January samples averaged 107 dead oysters per location,
more than twice the average of the September samples.

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Based on the oyster samples and poling data, Dr. Cake concluded Melerine’s
damages totaled $7,235,993.27. That figure represents two components of damages:
the cost to repair the damaged reefs , which Dr. Cake calculated to be $997,314.77;
and lost profits from oysters killed by the grounding incident, which he calculated
to be $6,238,678.50. For OFI’s lease, Dr. Cake’s figures totaled $1,8 01,716.25,
including repair costs of $349,199.50 and lost income of $1,452,516.75.
Melerine and OFI sued the tugboat captain’s employer, Tom’s Marine &
Salvage, LLC, and its insurer, AGCS Marine Insurance Company, seeking damages
caused by the grounding. Melerine and OFI alleged the grounding caused extensive
damage to “[p]etitioners’ oysters, oyster habitat, and water bottoms” of their leases.
According to the petition, t he captain’s efforts to free the tugboat “resulted in
excessive siltation damage . . . [rendering] the leases, or portions thereof, unsuitable
for oyster cultivation.” Plaintiffs sought recovery for the diminution in the market
value of their leases , damage to the oyster -supporting water bottom improved by
them, and damage to living oyster resources.
After extensive pre -trial discovery, defendants filed a motion in limine
seeking to exclude any evidence based on formulas generated by the Oyster Lease
Damage Evaluation Board (OLDEB). OLDEB is a legislatively -created entity
charged with establishing a uniform system of compensation for damage to oyster
beds caused by oil and gas activity. See La. R.S. 56:700.10 -14. The statutory
scheme is designed to address proposed oil or gas operations that will intrude on an
oyster leasehold. See La. R.S. 56:700.12. To that end, the OLDEB statutes and
related regulatory provisions, methodologies, and formulas are all premised on one
central feature: the performance of extensive biological surveys of the leased area
before and after the scheduled oil or gas activity. See La. R.S. 56:700.12(4); La.
Admin. Code 43, § §3703, 3903. Using comparative data obtained from pre - and
post-project surveys, damage to the water bottom and oyster stock can be calculated

5

with OLDEB-developed formulas. See Oyster Lease Damage Evaluation Board,
Uniform Evaluation Methods.
In a second motion , d efendants sought to exclude Dr. Cake’s opinions ,
arguing he is not qualified to opine on the movement of sediment through plaintiffs’
leases. See La. Code Civ. Pro. art. 1425F. Defendants cited deposition testimony
where Dr. Cake admitted he is not an expert in sedimentology or hydrology.
Defendants also asserted Dr. Cake’s damage calculations were not based on reliable
methodology.
The trial court denied both motions. According to the trial court, the
grounding incident is analogous to mineral activity, and the subject damages “are
precisely what the OLDEB formula was enacted to compensate .” Dr. Cake’s
opinions based on the OLDEB formulas were also held admissible, and the court
found him qualified to render the opinions. The matter proceeded to a jury trial.
Over a two-week trial, the parties presented testimony from several fact and
expert witnesses. Melerine testified he has farmed oysters for over 30 years and
holds eight leases totaling over 500 acres. When he acquired the Christmas Lake
lease, it had one productive spot , a clamshell reef located along the common
boundary with the OFI lease. He cleared mud off the reef , planted i t with seed
oysters, and began producing oysters. In 2009 he started adding crushed concrete
and limestone, referred to as “cultch,” to the water bottom to create additional oyster
bedding grounds. The lease now has seven productive areas that are fished on three-
year intervals, the typical growth cycle for an oyster. Melerine no longer uses seed
oysters and depends on the existing stock to reproduce. From 2011 to 20 16,
Melerine spent $300,000 on cultch for this lease, which became his most productive.
Melerine does not personally fish the lease. He contracts with Louis Molero
to harvest and sell the oysters in return for 50% of the sale proceeds. In 2016, before
the grounding, Molero was harvesting from the reef where the grounding eventually

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occurred. Melerine considered it the best spot on the lease. According to Melerine,
the reef was “chock full of oysters,” but after the grounding the lease production
went into a “tailspin.” However, records maintained by Molero indicate production
before and after the grounding was relatively the same. When asked about th is
apparent conflict , Melerine and Molero explained that to maintain pre-accident
production levels, Molero overfished the lease, “skull dragging it” to meet orders.
By 2018, the lease was depleted, and Molero stopped fishing it.
Van Robin, the owner of OFI, has been an oyster fisherman for 47 years. He
and his companies collectively have over 3,500 acres of oyster leases , with OFI
holding the most productive acreage, including the lease adjacent to Melerine’s
lease. Like Melerine, Robin applies cultch to his leases. The OFI lease is fished by
Melerine and another oysterman, who each receive 50% of the sale proceeds. Th e
OFI lease still produces, but not from the damaged area near the grounding site.
Two other area oysterm en testified about encountering the tugboat in
Christmas Lake. Lonnie Assavedo was the first to see the boat . It entered the area
during a wind -driven low tide that dropped the water level about two feet. After
telling the captain to turn around and watching the tugboat start to leave, Assavedo
went to his lease about a mile away. From that distance he noticed puffs of diesel
coming from the area of the tugboat and turbulence behind the vessel, indicating to
him the captain was straining the engine trying to free it from the reef . That
continued for at least two hours. The next morning, Greg Perez encountered the
tugboat at the grounding site. After speaking to the captain, Perez left but returned
that afternoon to guide the boat out of the leases.
The tugboat captain, James Williams, confirmed the boat is about 60 feet long,
26 feet wide, drafts about six feet, and has two engines, each powering a 60 -inch
diameter propeller. After one engine failed, he changed course and entered
Christmas Lake to reach a canal leading to Hopedale. After talking to Assavedo, he

7

was exiting the area when the tugboat grounded and stopped. He tried to free it for
about 45 minutes , turned the engine off, and waited for high tide the next day.
Although the bow was stuck, he did not think the propeller hit bottom. A navigation
expert hired by plaintiffs, Captain Ronald Campana, inspected the tugboat in dry
dock and determined it has a draft of seven to eight feet and requires nine feet of
water to navigate safely. The poling data from the Melerine lease indicates water
depths in the areas crossed by the tugboat ranging from six to eight feet, with the
grounding site 6-feet deep.
Dr. Cake confirmed his trips to the site, the collection of oyster samples, and
his poling information. After explaining the purpose of OLDEB, Dr. Cake
repeatedly reminded the jury that his poling, sampling, and calculations were in
accordance with OLDEB guidelines and procedures. The following excerpt is
illustrative:
Q. And describe briefly what the purp ose of the Louisiana Oyster
Lease Damage Evaluation Board --sometimes we’ll call that by the
acronym OLDEB; is that fair?

A. That’s fair. OLDEB is a State organization under the
Department of Natural Resources that brings together representatives
of the oil industry and the oyster industry under an administrative law
judge, and the purpose is to determine whether or not there are damages
in the oil and gas field to oyster leases.

Q. And as part of that process [has] OLDEB promulgated any
guidelines or methodologies for how to resolve these disputes?

A. Yes, they did. There are protocols for performing oyster lease
assessments that are established in law under the Department of Natural
Resources under OLDEB.

Q. And are those the methodologies that you applied in this case?

A. Absolutely.

Plaintiffs also introduced a copy of the OLDEB guidelines and uniform evaluation
methods.

8

Dr. Cake acknowledged he did not have the pre-project biological survey
required by OLDEB, but said he could “piece together what the lease looked like
beforehand” and “estimate the damage that is the loss of oysters, mortality, from the
distance (sic) of the shells themselves.” Dr. Cake opined the tugboat disbursed
sediment covering 34.2 acres of the Melerine lease and 12.5 acres of the OFI lease.
That conclusion was primarily based on poling, which indicated to him the sediment
in those areas was “fluffy . . . a very soft ooze material [that] you can feel with a
cane pole.” Using an OLDEB table, Dr. Cake concluded this acreage needed three
inches of new cultch cost ing $955,410.83 for the Melerine lease and $349,199.50
for the OFI lease. Additionally, the grounding site needed twelve inches of cultch
costing $41,903.94.
Dr. Cake based his opinions on the loss of oysters on the samples taken several
months after the grounding. He used the average number of dead oysters from the
square-meter samples to calculate an average number of dead oysters per acre, which
totaled 1,671 sacks.2 Although the OLDEB guidelines require the per-acre mortality
figure to be multiplied by the number of damaged acres, Dr. Cake multiplied it by
all productive acreage, both damaged and undamaged. This produced a projected
total of 131,340 sacks of dead oysters for the Melerine lease and 30,579 for the OFI
lease. Those oysters, in Dr. Cake’s opinion, were killed by sediment disbursed by
the tugboat. Using a $60 sack price less $12.50 harvesting cost, he concluded the
oyster stock loss is $6,238,678.50 for the Melerine lease and $1,452,516.75 for the
OFI lease.
Scott Porter, the s cuba diver who assisted Dr. Cake, is also a biologist and
testified primarily about his findings in the area of the grounding. Diving
approximately five months after the incident, with visibility limited to six inches, he

2 A sack contains 190 oysters.

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relied mainly on feel and testified the grounding site was heavily damaged, referring
to it as a “chopped water bottom.” In January, he swam more of the lease, looking
and feeling for signs of the path traveled by the tugboat before it grounded. He felt
some “soft . . . chopped up” spots along the path that he believed were caused by the
tugboat’s propeller.
The plaintiffs’ final witness in their case-in-chief was Ralph Litolff, a forensic
accountant who used Dr. Cake’s figures to arrive at the same conclusions for the
damage to the oyster crop. Litolff referred to his approach as the “crop model”
where oysters are analogous to agricultural crops destroyed in an incident. “The
reason this is a littl e more difficult to grasp [here],” Litolff candidly expressed, “is
all of this is underwater.”
Defendants presented testimony from several experts, including Dr. Mark
Kulp, a coastal geologist who interpreted side-scan sonar images of the lease
bottoms. The images, vertically accurate within a centimeter, identified the reefs
and did not, a ccording to Dr. Kulp, reveal any sign of bottom scar ring from the
tugboat. Dr. Kulp acknowledged that a vessel-grounding can impact a reef, and the
side-scan sonar identified an area of soft water bottom in the reef at the grounding
site.
Dr. Nan Walker, an oceanography and coastal sciences professor at LSU,
specializes in the use of satellite imaging data to study coasta l sediment transport.
She reviewed several available images of Christmas Lake during 2016, including
one image taken about two hours after the tugboat left the reef. Dr. Walker found
no evidence of a large sedimentation event due to the grounding. The leased areas
had about 60 to 70 milligrams of suspended sediment in the water after the tugboat
left the reef . By comparison, on February 9, 2016, three months before the
grounding, the leased areas had as much as 300 milligrams of suspended sediment.
Several other days during early and late 2016 the levels exceeded 100 to 200

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milligrams of suspended sediment, usually corresponding with cold fronts and high
winds.
Dr. Ioannis Georgiou, a professor at UNO who teaches sediment transport and
specializes in hydrodynamics, modeled the potential sediment disbursed by the
tugboat at the grounding site. He stated the falling tide removed some of the
sediment; however, to be conservative, he assumed all the sediment remained on the
leases. If spread over the leases, the sediment layer produced by the propeller would
be a “fraction of inch,” more specifically stated in his report as one to two
millimeters. According to Dr. Georgiou, o utside the direct impact area at the
grounding site, the grounding event produced sediment levels comparable to natural
weather events. The tugboat engine would have to have run for sixteen hours to
suspend enough sediment to reach levels typically generated during a really strong
cold front.
Michael Rayle Jr., an oyster biologist, visited the leases twice in April 2018,
nearly two years after the grounding, to pole and sample. The sampling revealed
significant number s of oysters on both the Melerine and OFI leases, with one
location indicating as many as 930 sacks on an acre. He found no evidence of a
large mortality event and nothing to support Dr. Cake’s damage assessment.
Defendant’s last witness, Dr. Walter Keithly , is a resource economist who
reviewed the plaintiffs’ production records and income tax returns. For the Melerine
lease, the most production ever in one year was 7,500 sacks. By comparison, Dr.
Cake opined the g rounding killed 131,340 sacks on the Melerine lease. As to
earnings, Melerine’s tax returns showed yearly gross income for 2014 through 2016
of $157,000, $195,000, and $410,000. Dr. Keithly acknowledged the tax returns do
not reflect which of Melerine’s leases generated the income and that tax returns do
not reflect the value of unharvested oysters.

11

Dr. Keithly explained the fair market value of any product is the price a
willing seller will sell to a willing buyer in an arms-length transaction. For income-
producing property, that value may be determined by discounting the property’s
annual income or by comparing sales of comparable properties. Dr. Keithly did not
have sufficient information to use the income approach for this case , but has
reviewed many oyster lease assignments and appraisals. T he highest price he has
seen for an oyster lease is $3,000 per acre. He agreed non -productive leases are
more likely to be sold than productive leases.
Plaintiffs called one rebuttal witness, Dr. George Flowers, a geolog ist and
associate professor at Tulane. His testimony was limited to critiquing the defense
experts’ opinions and methodology. He did not offer any independent opinions or
conclusions on causation or damages. Dr. Flowers believed the satellite imagery
relied upon by Dr. Walker was insufficient to accurately determine suspended
sediment in a relative small body of water like Christmas Lake. He also criticized
Dr. Georgiou for using a sediment disbursement model applicable to ships moving
through water rather than a grounded vessel.
The jury returned a 10-2 verdict for the plaintiffs, awarding $4,937,532.77 to
Melerine and $1,150,169.70 to OFI. The Melerine award is consistent with Dr.
Cake’s calculations with one modification: in determining lost profits, the jury used
harvesting cost of 50% of the sales price for a sack, consistent with the plaintiffs’
arrangements in this case. The same adjustment was apparently made for the OFI
award, but that modification (about $535,000) does not fully account for the
difference between the OFI award and Dr. Cake’s opinion of their damages,
$1,801,716.25. The trial court signed a judgment in accordance with the jury’s
verdict. Defendants’ motion for new trial was denied , and the judgment was
affirmed on appeal. See Melerine v. Tom's Marine & Salvage, LLC , 19-0672 (La.
App. 4 Cir. 3/4/20), ___ So. 3d ___ ( 2020WL1056806). This court granted a writ

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of certiorari. See Melerine v. Tom ’s Marine & Salvage, LLC , 20 -00571 (La.
10/20/20), 303 So. 3d 313.
DISCUSSION
Defendants contend the trial court erred by admitting evidence of OLDEB
formulas and allowing Dr. Cake to testify to opinions beyond his expertise and not
supported by reliable methodology.
I. OLDEB
Defendants’ objection to the OLDEB evidence goes to its relevancy. Relevant
evidence is evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable
than it would be without the evidence. La. Code Evid. art. 401. Evidence that is not
relevant is not admissible. La. Code Evid. art. 402. Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury . See La. Code Evid. art.
403. The trial court is accorded great discretion in determining whether evidence is
relevant; and, absent a clear abuse of discretion, rulings on relevancy will not be
disturbed on appeal. State v. Magee, 11-0574 (La. 9/28/12), 103 So. 3d 285, 321.
OLDEB is the product of a statutory scheme enacted to resolve “turf wars”
between oyster lessees and mineral lessees. Jurisich v. Jenkins , 99 -0076 (La.
10/19/99), 749 So. 2d 597, 605. To arbitrate these conflicts, OLDEB is charged with
promulgating “rules and regulations to determine the method of establishing a
uniform system of compensation for actual damages caused to the beds of
leaseholders based on biological test data.” La. R.S. 56:700.10 (emphasis added).
“Biological test data” is defined as “surveys of oyster beds and grounds by a
certified biologist to determine the quality, condition, and value of oyster beds and
grounds.” La. R.S. 56:700.11(2). When a claim is filed with OLDEB, a “biological
survey shall be performed before the operations begin and upon completion of the

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activity.” La. R.S. 56:700.12(4). The initial biological survey is filed with OLDEB
before operations begin. La. R.S. 56:700.12(5). Upon completion of the activity, the
responsible party “shall have another biological survey performed and filed with the
board so that actual damages to the leasehold may be determined by the board.” Id.
By comparing the before-and-after studies, OLDEB determines the damage to the
oyster beds:
All claims shall be evaluated expeditiously based on biological test data
done before and after the activity over or on the beds occurs, and upon
determining actual damages the claim shall be immediately paid to the
board by the owner for the benefit of the leaseholder.

La. R.S. 56:700.12(6) (emphasis added).
This comparative -analysis approach is carried forward in the applicable
regulations adopted by the Secretary of the Department of Natural Resources. See
La. R.S. 56:700.14E; 43 LAC I, §§3701-03, 3901-23. Pursuant to these regulations,
the “initial biological survey shall be based on onsite inspection and evaluation and
shall be made to determine the quality and value of the beds and ground s expected
to be affected by the proposed oil and gas activity. ” 43 LAC I, §3903A . Upon
completion of the proposed activity, the party conducting the activity “shall have a
final biological survey made at [its] expense . . . to furnish a basis for determination
of the actual damage to the leasehold sustained as a result of the oil and gas activity.”
43 LAC Pt I, § 3903C.
The regulations direct OLDEB to engage experts to assist in establishing a
uniform method for determining “the value of the oyster beds and grounds before
the oil and gas activity takes place and in determining the estimated damage or loss
to the leasehold after the activity is completed. ” 43 LAC Pt I, §3903E (emphasis
added). A two -day workshop for that purpose was atte nded by environmental
scientists, oyster biologists, and representatives from the oyster industry, oil and gas
industry, and state and federal agencies. Based on that workshop, OLDEB adopted

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“General Guidelines for Conducting Oyster Lease Biologic al Surveys” and
“Uniform Evaluation Methods.” Like the OLDEB statute and regulations, these
publications emphasize the necessity of “initial and final biological surveys” to
determine damages to the water bottom and oyster stock. The guidelines provide
detailed recommendations for identifying and determining the quality and value of
the pre-project water bottom and oyster stock, including specific criteria for spacing
poling transects and probes, as well a s minimum requirements for oyster samples.
Using these techniques, initial and final biological surveys must be completed.
A “final damage assessment” for the water bottom and oyster stock is
determined by comparing the surveys:
The pre- and post-construction bottom substrate maps will be compared
to identify and quantify the area and bottom substrate type actually
damaged by the development activity.

* * *

The compensation for actual damages to living oyster resources will be
based upon actual losses of the standing crop, or the difference between
pre- and post-project standing crops beyond that which may have been
harvested in the interim or damaged by acts of God.

A “cultch currency matrix” is used to determine the amount of cultch needed
to repair damage to the water bottom. For the oyster stock, the formula requires
multiplying the number of lost sacks of oysters per acre by the number of acres of
damaged substrate. After adjustments for natural mortality, the lost sacks are valued
based on the current market price less production cost.
These statutes, regulations, guidelines, and formulas make clear that the
underpinnings of the OLDEB va luation methodology depend on pre- and post -
project biological surveys. Without those studies to determine the quality and value
of the water bottom and oyster stock, the OLDEB formulas are not useable.
In this case, n o pre -project biological survey was performed because the
presence of the tugboat and grounding were unanticipated . The leased areas were

15

not poled before the grounding to identify the existing water bottom as required by
OLDEB’s detailed standards. No oyster samples were taken before the grounding
to determine the number of oysters on the leas e, again, as required by OLDEB’s
sampling criteria. Nothing, whether OLDEB compliant or not, was done before the
grounding to record the quality and value of the water bottom or the oyster stock.
Instead, months after the grounding, Dr. Cake tried to “piece together what the lease
looked like beforehand” by talking to oyster fisherman, conducting poling and oyster
sampling, and drawing inferences therefrom. Those efforts, as diligent as they may
have been, are not a substitute for a pre -project biological survey required to apply
the OLDEB formulas.
While we separately address the reliability of Dr. Cake’s methodology, we
hold as a matter of law that OLDEB guidelines and uniform evaluation methods are
not applicable without a pre-project biological survey. The reliability of OLDEB
methodology is anchored to comparative biological surveys. Without those surveys,
there is no comparison, and t he methodology is unworkable. While p laintiffs
contend Dr. Cake merely used some OLDEB “techniques,” the reliability of any
technique must be independently established. A witness cannot, as Dr. Cake did at
trial, attempt to validate his techniques by claiming they comply with “OLDEB
standards,” when the OLDEB standards were expressly adopted for use only when
biological surveys are completed before and after an event. A fair reading of the
OLDEB statutory scheme reflects that those comparative surveys were critical to the
legislative compromise between mineral lessees and oyster lessees, which ultimately
results in OLDEB making a damage award.
The need for comparative surveys was succinctly stated by Michael Rayle, the
oyster biologist who testified for the defendants . When asked about Dr. Cake’s
assertion that poling the lease bottoms several months after the grounding allowed

16

him to determine what productive areas were covered by sediment disbursed by the
tugboat, Rayle said:
This is where -- this is why OLDEB requires a pre-project survey. You
can’t tell from the other end of a pole whether something was recently
buried or has been buried for a while -- days, months, years. From the
other end of a pole, you can’t tell that.3

Because comparative biological studies were not completed in this case, the
OLDEB guidelines and uniform evaluation methods are not applicable. As such, the
evidence lacks probative value and is irrelevant and inadmissible in this proceeding.
See La. Code Evid. art. 401-02. The trial court erred in denying the motion in limine
seeking to exclude evidence related to OLDEB.
II. DR. CAKE’S OPINIONS
Defendants next argue the trial court erred in denying their motion to exclude
certain opinions by Dr. Cake. Defendants contend Dr. Cake is not qualified to render
opinions in sedimentology and hydrology, and his methodology for determining the
number of oysters killed by the grounding is not reliable.
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if (1) the
expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue; (2) the testimony is
based on sufficient facts or data; (3) the testimony is the product of reliable principles
and methods; and (4) the expert has reliably applied the principles and methods to
the facts of the case. La. Code Evid. art. 702A.
Article 702A creates a five -element test for the admissibility of expert
testimony, first requiring the witness be “qualified as an expert by knowledge, skill,
experience, training, or education,” and then enumerating four requirements for the

3 Notably, the poling provided for under OLDEB is to determine the nature of the water
bottom, i.e. reef, shell, sand, or mud, not how long that water bottom has been there.

17

testimony’s reliability and relevance. See Blair v. Coney , 19-00795 (La. 4/3/20),
___ So. 3d ___ (2020WL1675992, *4). Failure of the witness to qualify as an expert
or failure of the testimony to meet any one of the enumerated indicia of reliability or
relevancy renders the testimony inadmissible. Id.
The trial court performs the important gatekeeping role of ensuring that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.
See Daubert v. Merrell Dow Pharm aceuticals, Inc., 509 U.S. 579, 597; 113 S.Ct.
2786, 2798; 125 L.Ed.2d 469 (1993) ; Blair, ___ So. 3d at ___ (2020WL1675992,
*5); Cheairs v. State , 03-0680 (La. 12/3/03) , 861 So. 2d 536, 541 . The objective
of the gatekeeping requirement is to ensure the reliability and relevancy of expert
testimony by making certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level
of intellectual rig or that characterizes an expert ’s practice in the relevant
field. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152; 119 S.Ct. 1167, 1176;
143 L.Ed.2d 238 (1999) . The expert ’s opinions must be grounded in scientific
methods and procedures, not subjective belief or unsupported speculation. See
Daubert, 509 U.S. at 589-90; 113 S.Ct. at 2795.
The trial court must make a preliminary assessment that the reasoning or
methodology underlying the testimony is scientifically valid and can be applied to
the facts at issue. Daubert, 509 U.S. 579, 5 92-93; 113 S.Ct. at 2796. In making
that determination, the trial court may consider (1) whether the expert ’s theory or
technique can be and has been tested; (2) whether the theory or technique has been
subjected to peer review and publication , (3) whether there is a known or potential
rate of error, and (4) whether the methodology is generally accepted in the scientific
community. Daubert, 509 U.S. 579, 593-94; 113 S.Ct. at 2796-97. The trial court
is afforded broad discretion in determining whether expert testimony is admissible,

18

and its decision will not be overturned absent an abuse of that discretion. Blair, ___
So. 3d at ___ (2020WL1675992, *5); Cheairs, 861 So. 2d at 541.
A. Sediment Dispersion Opinions
Under his “inventory” approach, Dr. Cake endeavored t o determine the
number of damaged acres of water bottom and the number of dead oysters caused
by the tugboat crossing and grounding on the lease. Initially, this required Dr. Cake
to determine how much productive acreage was rendered useless by sediment
disbursed by the vessel. Stated differently, Dr. Cake claimed sediment disbursed by
the tugboat killed the oysters. This required proof that sediment moved from the
grounding site to the various locations on the oyster lease and killed the oysters in
those locations. Dr. Cake purported to make that determination with (1) no expertise
in sedimentology or hydrology, (2) no pre-accident biological survey of the lease
water bottom, and (3) no modeling data or other information from a sedimentology
or hydrology expert identifying the quantity or path of dispersed sediment.
In his deposition, submitted for the Daubert motion, Dr. Cake was asked about
his expertise in sedimentology and hydrology:
Q. And you don’t have any field of expertise involving
sedimentology, correct?

A. That’s correct.

* * *

Q. Have you ever done any type of fate or transport models
for sediment?

A. No.

Q. Do you have any background in hydrology?

A. No.

Despite acknowledging these limitations, Dr. Cake rendered several opinions,
particularly critical causation opinions, deeply rooted in t he scien ces of
sedimentology and hydrology. To identify the damaged acreage, Dr. Cake relied

19

on poling done eight months after the grounding. According to Dr. Cake, that poling
identified 34.2 acres on the Melerine lease and 12.5 acres on the OFI lease of
previously productive oyster grounds now covered in sediment disbursed by the
tugboat. He reached his conclusion based on the texture of the sediment discerned
from the end of a pole, as explained in the following exchanges:
A. If the sediment in the recent burial is fluffy, it has not
solidified yet, has not compacted. So it’s a very soft ooze material
above it, and you can feel that with a pole. If it’s one that’s buried a
long time, it’s essentially hard mud that you have to penetrate firmly to
get any oysters that are under the mud.

* * *

Q. And what about the condition -- we were talking about the
poling and the difference between fresh burial and old burial. Did that
poling allow you to draw conclu sions about what caused this, the
damage that you found on the lease?

A. The soft slushy nature of the new sediment over all the
areas that were impacted allowed us to say, yes, it’s the newly disturbed
sediments that settled out on the oysters themselves and killed them.4

Dr. Cake again ventured into sedimentology to reconcile anomalies in his
oyster-sample findings. The oyster samples taken five and nine months after the
grounding included a significant number of oysters that Dr. Cake believed died
within a few weeks of the sampling. Although he earlier testified an oyster will die
within six weeks of being covered by sediment, he nevertheless attributed these
recent deaths to the grounding that occurred months earlier. In an effort to explain
how more oysters could be dying months after the grounding, Dr. Cake said:
[A]s the sediment spread out and settled on new areas adja cent to the
grounding event site, you’ll have new oysters dying. So you’ll have
fresh mortalities for a considerable period of time following a
grounding event.

4 For corroboration, Dr. Cake cited Scott Porter’s findings during his scuba diving, but the
vast majority of Porter’s testimony addressed his observations of the bottom condition at the
grounding site and, to a lesser extent, the vessel path. Porter offere d little testimony about the
much broader acreage purportedly covered in sediment disbursed by the tugboat.

20

In his deposition, Dr. Cake offered similar insight into the basis of his
causation conclusion:
Q. So as you move away from the event, is there some point
in time where sediment will stop killing oysters?

A. Yes, and it may take a year or more in this particular case
because the sediments have been liquefied.

* * *

Q. So this is from September 2nd, 2016 for the collection date.
These [fresh-dead] oysters would have died sometime in the month of
August?

A. Right. So this field mortality is still ongoing from the
sediment problems on the lease from the crossing and the grounding.

Q. How did you make that determination?

A. That’s just professional opinion, observing the deaths of
oysters over 40 years.

Q. So it’s just your own personal opinion?

A. It is.

Q. [So] you don’t have any literature that would support a
theory that oysters were still dying from a sedimentation event in April
of 2016 and the oysters are still dying in September of 2016 from that
same event?

A. Correct.

Dr. Cake did not explain how sediment is suspended for a period of time, then settles
months later and kills oysters. He did not explain how “liquefied” sediment appears
as a “fluffy… very soft ooze material you can feel with a pole.”
The following exchange further demonstrates that Dr. Cake , to reach his
ultimate opinion on causation, had to make a number of inferences and conclusions
requiring expertise in sedimentology and hydrology:
Q. What does the [poling and sampling] data tell you about
your conclusions that the damage that you found on these leases was
caused by this grounding event?

A. The data showed essentially the sediment that was moved
into the water column during the grounding event and during the

21

passage of the vessel across the lease, displaced sediment horizontally
onto adjacent oyster reef areas and onto the reefs below, the track of the
vessel, and the appearance of the oysters, that is, the blackened muddy
appearance, and the death of the oysters led me to conclude that the
sediment insult was the cause of the loss of the oysters in the standing
stock.

As these excerpts confirm, Dr. Cake, having no expertise in sedimentology
and hydrology, purported to (1) determine how long sediment had been at a
particular location by feeling its texture with a pole, (2) connect the sediment to an
event occurring eight months earlier, and (3) conclude the sediment, because it was
“liquefied,” continued to spread to new locations around the lease for a year after
the event. These conclusions, by Dr. Cake’s own admission, are beyond his area of
expertise. The movement of sediment between points in water over a period of time
was a necessary element of proving causation in this case. It is an area that Dr. Cake
acknowledged he lacked expertise. The trial court abused its discretion in allowing
Dr. Cake to express those opinions.
B. Oyster Mortality and Damages
Defendants challenge d other opinions by Dr. Cake, including his oyster
sampling and damage calculations , arguing his methodology is not reliable. As
previously discussed, the trial court erred in allowing Dr. Cake to refer to OLDEB
guidelines to support the reliability of his methodology. That finding, however, does
not necessarily mean Dr. Cake’s methodology is unreliable. Rather, his approach
and technique must be ind ependently scrutinized to determine if it satisfies the
requirements of Article 702.
In addition to sediment disb ursement, a n essential element of Dr. Cake ’s
causation opinion is information gleaned from oyster samples taken five and nine
months after the grounding. Those samples and the extrapolations from them form
the basis of his economic loss calculations. Dr. Cake classified some sample oysters
as “fresh” mortalities, meaning they died within about two weeks of the sampling;

22

and some as “recent” mortalities , identified as such because their shells were still
connected by the hinge material. In his deposition, Dr. Cake stated hinge material
can remain on shells for three years after an oyster dies. These “fresh” and “recent”
mortalities had blackened shells, which indicate they were covered in mud. By
extrapolating from the se samples, Dr. Cake calculated the total number of dead
oysters on the lease. Using this methodology, he opined the Melerine and OFI leases
had 161,919 sacks of oysters killed by disbursed sediment.
Dr. Cake offered no testimony about the reliability of his samples. He used
fifteen samples, each cumulatively measuring one square meter, to extrapolate the
number of dead oysters on 96.9 acres of productive area on the Melerine and OFI
leases. The samples represent a tiny fraction of that acreage: 0.0038%. With a
sample size that small, some indicia of reliability is necessary to establish the sample
data can accurately predict the total number of dead oysters on a lease . As
recognized by the U.S. Supreme Court:
Trained experts commonly extrapolate from existing data. But nothing
in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.

General Elec. Co. v. Joiner, 522 U.S. 136, 146; 118 S.Ct. 512, 519; 139 L.Ed.2d 508
(1997).
The plaintiffs presented no evidence Dr. Cake’s sampling technique can be or
has been tested, has a known or potential rate of error, or has been subjected to peer
review and publication. See Daubert, 509 U.S. 579, 593-94; 113 S.Ct. at 2796-97.
While sampling may be generally accepted in the industry, nothing in the record
establishes Dr. Cake’s particular method is reliable. Dr. Cake cited only the OLDEB
guidelines, while acknowledging his approach differed from those guidelines. As
previously pointed out, the OLDEB methodology is based on a comparative -data

23

analysis using before-and-after biological studies. That model cannot be used in this
case.
Further undermining the reliability of his sampling method, Dr. Cake failed
to explain significant variances in his samples. For example, the January samples,
which were more removed in time and distance from the grounding, showed
significantly greater oyster mortality than samples taken four months earlier at the
grounding site. That information suggests that given more time and distance from
the event the rate of oyster dea ths increas ed. That critical anomaly was never
scientifically explained by Dr. Cake.
Plaintiffs’ evidence of post-accident oyster production also undermines, rather
than supports, the reliability of Dr. Cake’s sampling method. Dr. Cake counted live
and dead oysters in the sampled areas . Using his figures and methodology, the
Melerine lease should have had a total of 207,843 sacks of live oysters available for
harvesting in the three years after the grounding. That is over 69,000 sacks of
available oysters per year. The actual post-accident production shows that number
is stunningly inaccurate. After the grounding, and despite Dr. Cake’s opinion that
50 acres of reef were unaffected by the grounding, production from the Melerine
lease never exceeded 7,500 sacks per year. To get to that level , according to
Melerine and Molero, they had to “over-fish” and “skull-drag” the lease to the point
of depletion by 2018. But, based on Dr. Cake’s methodology, the Melerine lease
should have had an unprecedented number of oysters available for harvesting from
2016 to 2019, with expected production being nine times greater than any previous
year. That never happened.
Dr. Cake also failed to explain why, to arrive at the number of oysters killed
by the grounding, he extrapolated the average number of dead oysters per acre over
the entire productive acreage rather than just the damaged acreage. This approach
is contrary even to the OLDEB methodology cited by Dr. Cake, which states the

24

average number of dead oysters should be multiplied by the damaged acreage. When
asked at trial, Dr. Cake said he multiplied the mortality rate times all the productive
acreage to “find out the loss for the entire . . . productive acres.” In their brief,
plaintiffs argue Dr. Cake’s sampling “applied to all productive areas, so he
appropriately applied the average mortality found across those productive acres to
the same area; this measured all oysters destroyed by the incident throughout the
lease.” We initially note Dr. Cake testified his samples were taken only from sites
he believed were damaged. Nevertheless, the proposed explanations do not address
why Dr. Cake’s calculation of the oysters killed in the incident includes oysters on
acreage unaffected by the incident.
Dr. Cake’s qualification as an oyster biologist is well -established and
undisputed. In this case, however, he was allowed to render opinions beyond his
area of expertise . The record also fails to establish that his opinions quantifying
plaintiffs’ damages are supported by reliable methodology. For these reasons, the
trial court abused its discretion in denying defendants’ motion to exclud e or limit
Dr. Cake’s opinions.
III. Disposition of Appeal
Given the trial court’s errors, we must determine the proper disposition of this
appeal. Generally when the trial court makes evidentiary errors that are prejudicial,
such that they materially affect the outcome of the trial and deprive a party of
substantial rights, and if the record is otherwise complete, the appellate court will
conduct its own de novo review of the record. See Buckbee v. United Gas Pipe Line
Co. Inc., 561 So. 2d 76, 86-87 (La. 1990); McLean v. Hunter, 495 So. 2d 1298, 1304
(La. 1986); Gorman v. Miller , 12-0412 (La. App. 1 Cir. 11/13/13) ( en banc), 136
So. 3d 834, 841, writ denied, 13-2909 (La. 3/21/14), 135 So. 3d 620; see also La.
Code Ev id. art. 103A . However, th is court has recognized that in limited
circumstances, when necessary to reach a just decision and to prevent a miscarriage

25

of justice, an appellate court should remand the case to the trial court under the
authority of Louisiana Code of Civil Procedure article 2164, rather than
undertaking de novo review. See Wegener v. Lafayette Ins. Co., 10-0810 (La.
3/15/11), 60 So. 3d 1220, 1233; Alex v. Rayne Concrete Service, 05-1457 (La.
1/26/07), 951 So. 2d 138, 155 ; see also Gorman, 136 So. 3d at 841 . Whether a
particular case should be remanded is largely within the court’s dis cretion and
depends upon the circumstances of the case. Wegener, 60 So. 3d at 1234.
Given the particular circumstances of this case, a remand for a new trial is
just, legal, and proper. See La. Code Civ. Pro. art. 2164. The evidence at issue was
central to the plaintiffs’ case. Dr. Cake was their primary expert witness, and his
methodology relied heavily on the OLDEB guidelines and formula, the admissibility
of which was a res nova issue. Defendants objected to the evidence in pre-trial
motions, and the trial court rendered its rulings about two weeks before trial. The
parties proceeded to a jury trial i n reliance on these critical rulings, which we now
find to be erroneous. The rulings undoubtedly affected trial strategy and witness
selection by both sides. We also recognize the jurisprudence for oyster -lease
litigation has not always been consistent. In a similar suit, this court granted litigants
a new trial because “the parties may have been misled by previous intermediate court
decisions.” See Inabnet v. Exxon Corp. , 93-0681 (La. 9/6/94), 642 So. 2d 1243,
1256. For all of these reasons, remanding for a new trial, rather than conducting a
de novo review, is warranted in this case.
CONCLUSION
The trial court erred in denying the motions seeking to exclude the OLDEB
evidence and Dr. Cake’s opinions on the damages caused by sediment disbursed by
the tugboat. In reaching these conclusions, we express no opinion on the merits of
plaintiffs’ claims for damages, nor should our holdings be construed to condone
improper intrusions into oyster grounds. An oyster lessee has a valuable property

26

right entitled to protection under the law. See Avenal v. State , 03 -3521 (La.
10/19/04), 886 So. 2d 1085, 1100, n.20. More broadly, as recognized by now Chief
Justice Weimer, “The oyster industry has been and continues to be vital to
Louisiana’s economy.” Avenal, 886 So. 2d at 1110 (Weimer, J., concurring). Our
ruling only confirms that an oyster fisherman’s claim for damage to his leasehold
interest is subject to the same evidentiary standards and burden of proof applicable
to any property damage claim, nothing more but nothing less.
The judgment of the court of appeal is reversed. The trial court’s judgmen ts
denying defendants’ motion in limine and motion to exclude opinions of Dr. Cake
are reversed. The judgment entered on the jury verdict is vacated, and the matter is
remanded to the trial court for a new trial.
JUDGMENTS REVERSED AND VACATED; REMANDED FOR NEW
TRIAL.

SUPREME COURT OF LOUISIANA
No. 2020-C-0571
MARTY MELERINE AND OYSTER FISHERIES, INC.
VERSUS
TOM’S MARINE & SALVAGE, LLC, TOM’S WELDING, INC., TRIPLE T
MARINE, LLC, CAPTAIN JAMES WILLIAMS, ALLIANZ GLOBAL
RISKS US INSURANCE COMPANY, AND ALLIANZ GLOBAL
CORPORATE AND SPECIALTY
On Writ of Certiorari to the Court of Appeal, Fourth Circuit,
Parish of St. Bernard
Hughes, J., concurring.
While I concur in the remand for a new trial for the reasons expressed in the
majority opinion, I do not think that the testimony of Dr. Cake should be excluded
in its entirety. The OLDEB an alysis may not apply, but the measurements and
observations made by Dr. Cake of the damaged area are certainly relevant.
It appears that the e xperts for both parties took data from the damaged area
and tried to apply it over the entire lease. The measure of damages obviously needs
to be more precise. But the jury should decide whether it finds more persuasive the
data from poling and sampling or satellite photos.
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. There are aspects of Dr. Cake’s testimony that
would be helpful to the jury.
03/24/21