Zerega Avenue v. Hornbeck Offshore ( 2009 )

08-0639-cv
Zerega Avenue v. Hornbeck Offshore
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
Heard: March 23, 2009 Decided: July 6, 2009
Docket No. 08-0639-cv
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ZEREGA AVENUE REALTY CORP. and FRED
TODINO & SONS, INC.,
Plaintiffs-Counter-Defendants-
Appellees,
v.
HORNBECK OFFSHORE TRANSPORTATION, LLC,
Defendant-Counter-Claimant-
Cross-Defendant-Appellant.
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Before: FEINBERG, NEWMAN, and KATZMANN, Circuit Judges.
Appeal from the January 8, 2008, judgment of the United States
District Court for the Southern District of New York (Kevin N. Fox,
Magistrate Judge), awarding damages resulting from an allision between
a barge and a bulkhead. The Court of Appeals rules that the District
Court erred in applying the Oregon rule to create a presumption with
respect to causation, and in precluding expert testimony offered by
the Defendant.
Judgment reversed, award vacated, and case remanded.
Joseph T. Stearns, New York, N.Y. (Gino A.
Zonghetti, Kenny, Stearns & Zonghetti
LLC, New York, N.Y., on the brief), for
Defendant-Appellant.
Alex Spizz, New York, N.Y. (Scott A.
Markowitz, Todtman Nachamie Spizz &
Johns, P.C., New York, N.Y., on the
brief), for Plaintiffs-Appellees.
JON O. NEWMAN, Circuit Judge.
This appeal primarily concerns the proper application of the
presumption of fault, applicable in maritime law, known as the “Oregon
rule.” See The Oregon, 158 U.S. 186 (1895). Defendant-Appellant
Hornbeck Offshore Transportation, LLC (“Hornbeck”) appeals from the
January 8, 2008, judgment of the District Court (Kevin N. Fox,
Magistrate Judge), finding Hornbeck liable to Plaintiffs-Appellees
Zerega Avenue Realty Corp. (“Zerega”) and Fred Todino & Sons, Inc.
(“Todino & Sons”) for more than $1.5 million in damages. See Zerega
Avenue Realty Corp. v. Hornbeck Offshore Transportation, LLC, No. 04
Civ. 9651, 2007 WL 3125318 (S.D.N.Y. Oct. 23, 2007). The damages were
awarded because of an allision1 between Hornbeck’s barge and a bulkhead
on Zerega’s property abutting Westchester Creek in Bronx County, New
York. Hornbeck principally claims that the Court erred by applying a
presumption in favor of Zerega on the issue of causation and by
1
“An allision is a collision between a moving vessel and a
stationary object.” Weyerhaeuser Co. v. Atropos Island, 777 F.2d 1344,
1346 n.1 (9th Cir. 1985).
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excluding the testimony of Hornbeck’s experts. We conclude that the
Oregon rule’s presumption of fault does not shift from a plaintiff the
burden of proving causation, and that the preclusion of Hornbeck’s
expert testimony was an abuse of discretion. We therefore reverse the
judgment, vacate the award, and remand.
Background
Zerega and Todino & Sons own property along Westchester Creek
(the “Zerega property”). At the waterfront of the Zerega property,
there is a bulkhead (also called a retaining wall or relieving
platform) and, farther inland, a one-story office building with a
basement. Hornbeck owns and operates the tug STAPLETON SERVICE (the
“tug”) and the Barge ENERGY 2201 (the “barge”), which is approximately
250 feet long and 50 to 60 feet wide.
In October 2005, the Plaintiffs-Appellees commenced an action for
damages against their insurance carriers and Hornbeck. The amended
complaint alleged that on October 29, 2002, Hornbeck’s barge, while
being pulled by its tug, struck the bulkhead on the Zerega property
due to Hornbeck’s negligent operation while traveling south on
Westchester Creek. It further alleged that the allision resulted in
the rapid and severe weakening of the bulkhead, which caused most of
the bulkhead to collapse nearly two weeks later. The Plaintiffs-
Appellees sought damages for repair of the bulkhead and the office
building. After a four-day bench trial, the Magistrate Judge found
Hornbeck liable for negligently causing damage to the bulkhead and the
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office building and entered an award of $1,505,353, plus pre- and
post-judgment interest, in favor of Zerega and Todino & Sons.2
The Magistrate Judge, trying the case by consent, see 28 U.S.C.
§ 636(c), found that Hornbeck’s tug was pulling the barge, in light
condition, southbound in Westchester Creek toward Unionport Bridge.
The tug was being operated by Mate Steven Spurlock with assistance
from Training Mate Eric Fuerstinger. Spurlock and Fuerstinger stalled
the vessels in the immediate vicinity of the Zerega property in mid-
afternoon, while waiting in the narrow channel for the Unionport
Bridge to open. During that time, Spurlock became concerned that the
stern of the barge was drifting too close to the bulkhead of the
Zerega property, and that the wind, which the Court found to be
blowing toward the bulkhead, would cause the barge in its light
condition to hit the retaining wall. Spurlock maneuvered the tug in
an attempt to straighten the barge. As the Court found, Spurlock
could not see the rear end of the barge while operating the tug, and
Fuerstinger did not have a direct view of the rear of the barge on the
starboard side.
The Court found, on the testimony of four witnesses, that the
barge allided with the bulkhead structure on the Zerega property.
Christopher Todino (“Todino”), principal of Todino & Sons, and his
2
The insurance company defendants have apparently settled, and,
in any event, are not named in the judgment.
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business guest, Michael Justino (“Justino”), were meeting in an office
located at the southern end of the office building at around 3:30 p.m.
They each testified that they suddenly felt a strong jolt and observed
from the office window a barge being pulled away from the Zerega
property by a tug. Louis Bruno, an office manager of Todino & Sons,
working in the center of the office building at around 3:30 p.m.,
testified that he felt a thump, heard Todino and Justino yelling, and
ran to a window from which he observed a barge being pulled away from
the bulkhead by a tug. Laura Bruno, vice-president of Todino & Sons,
testified that, upon hearing Todino and Justino yelling, she went to
a window of the office building and observed a barge being pulled away
from the Zerega property by a tug.
At trial, there was no dispute that on November 11, 2002, nearly
two weeks after the allision, a significant portion of the bulkhead on
the Zerega property collapsed into Westchester Creek. However, the
parties disputed the cause of the collapse and sought to introduce the
opinions of expert witnesses to support their competing theories.
Zerega was permitted to introduce the expert testimony of Steven
Schneider (“Schneider”), a professional engineer, that the bulkhead
structure collapsed because either: (a) Hornbeck’s barge struck the
retaining wall, causing the piles to shift, and, as the piles moved
back, they ripped the planking hardware off the steel, which
undermined the retaining wall; or (b) timber or a pole, latched on to
Hornbeck’s barge, was dragged along the face of the retaining wall,
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like a stick being pulled along a picket fence, and destroyed the
planking that was holding the earth underneath the structure in place,
thereby causing the structure to collapse.
The Court precluded Hornbeck from introducing the expert
testimony of Roderic Ellman (“Ellman”) and Pierce Power (“Power”),
both professional engineers. Preclusion was ordered because the Court
deemed Hornbeck to have failed to comply with a pretrial order of the
Court. That order stated that “on or before March 22, 2006, the
parties shall provide to the Court such information as they reasonably
believe will enable the Court to fulfill the gatekeeping
responsibilities imposed upon it by the Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786(1993).”
Ellman, one of the precluded witnesses, would have offered the
opinion that the cause of the bulkhead collapse was horizontal forces
applied from the direction of the land against the bulkhead structure,
whose wood pilings had become disconnected due to the corrosion of the
metal fasteners and had deteriorated due to the natural biological
decay of the timber. Power would have offered the opinion that the
barge did not strike the bulkhead.
Although the testimony of Ellman was precluded, Hornbeck was
permitted to introduce other evidence regarding the deterioration of
the bulkhead. Hornbeck introduced the pretrial deposition testimony
of Paul Cirillo, who owned the Zerega property from the late 1960s to
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the mid-1990s, that a sinkhole would develop in the bulkhead structure
every eight to twelve months and require filling, and that in July and
August of 2002, he observed a small sinkhole in the bulkhead of the
Zerega property, which grew larger over time. Spurlock and
Fuerstinger also stated through direct testimony that they observed a
sinkhole on the Zerega property when they passed it on October 29,
2002. The District Court determined that the testimony of Cirillo,
Spurlock, and Fuerstinger lacked credibility in light of the totality
of the evidence and inconsistencies brought out during cross-
examination. See Zerega Avenue Realty Corp., 2007 WL 3125318, at *3 &
n.3. Apart from that testimony, the only other evidence on which
Hornbeck relied was the testimony of Stanley White (“White”), Zerega’s
expert on the amount of damages. White acknowledged on cross-
examination that more than one plausible explanation for the
bulkhead’s collapse existed and that certain hardware was missing from
the area where the bulkhead collapsed, but also stated that the
hardware could be at the bottom of the Creek.
In determining Hornbeck’s liability, the District Court applied
what is known in admiralty law as the “Oregon rule.” The Court stated
the rule as follows: “It is a well-established proposition of maritime
collision law that when a moving vessel collides with a stationary
object, an inference of negligence arises and the burden is then upon
the owners of the vessel to rebut the inference of negligence.” Id. at
*5 (internal quotation marks omitted). The Court ruled that, once
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Zerega established that the barge struck the bulkhead, a presumption
arose that the barge was being negligently operated. The Court
further ruled that Hornbeck could rebut that presumption by showing,
by a preponderance of the evidence, that it acted with reasonable
care, that the allision was the fault of the stationary object, or
that the allision was an unavoidable accident. See id. at *6.
Implicitly concluding that Hornbeck had not rebutted the
inference of negligent operation, the Court then applied the Oregon
rule to the issue of causation, casting on Hornbeck the burden of
rebutting a presumption that its negligence caused Zerega’s damages.
See id. at *5-*6 & n.4.3 In evaluating Hornbeck’s evidence, the Court
3
The Court’s use of the presumption is placed in some doubt by the
last sentence of footnote 4: “[E]ven if the burden of proof remained
on the plaintiffs to establish causation and damages, once an
inference of negligence arose, the plaintiffs met their burden.” The
sentence could mean either that the inference of negligence is what
enabled the Plaintiffs to meet their burden on causation and damages
or that, independent of any presumption, the Plaintiffs met their
burden on causation and damages by their evidence. The Court
apparently relied on the presumption when it stated as a conclusion:
“[T]he defendant failed to rebut the presumption of fault, on the part
of the tug and barge, for (a) striking the plaintiffs’ bulkhead
structure, through the negligent operation of the vessel; and (b)
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ruled that Hornbeck “failed to proffer evidence at the trial that
would establish, by a preponderance, that the cause of the collapse of
the plaintiffs’ bulkhead structure was its deterioration and unsound
condition.” Id. at *6. The Court therefore held Hornbeck liable and,
finding White’s testimony as to damages to be credible, awarded
Plaintiffs-Appellees $1,505,353 for the damage to the bulkhead and the
office building, with pre- and post-judgment interest.
Discussion
On appeal, Hornbeck makes several challenges to the District
Court’s findings and rulings. We conclude that two of Hornbeck’s
challenges have merit. Most importantly, we write to clarify the
proper application of the Oregon rule in maritime allision cases.
I. The Presumption of Fault
In admiralty law, liability for collisions and allisions is based
upon a finding of fault that caused or contributed to the damage
incurred. See 2 Thomas J. Schoenbaum, Admiralty and Maritime Law
(“Schoenbaum”) § 14-2, at 89 (4th ed. 2004). As in any tort case, the
claimant generally has the burden of proving negligence. See East
River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 859
causing the bulkhead structure’s collapse.” Zerega Avenue Realty, 2007
WL 3125318, at *3 (emphasis added). In any event, at oral argument
the parties agreed that the presumption applies only to negligence and
not to causation.
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(1986) (noting that admiralty law “recognizes a general theory of
liability for negligence”); Schoenbaum § 14-2, at 100. Admiralty law,
however, recognizes a presumption, first formulated in The Oregon,
that applies when a vessel under its own power allides with an
anchored vessel or a stationary object. See 158 U.S. at 192. Under
such circumstances, the moving vessel is presumed to be at fault and
bears the burden of rebutting the presumption by showing that the
allision was the fault of the stationary object, that the moving
vessel acted with reasonable care, or that the allision was an
unavoidable accident. See id. at 192-93; Folkstone Maritime, Ltd. v.
CSX Corp., 64 F.3d 1037, 1050 (7th Cir. 1995); Delta Transload, Inc.
v. MV Navios Commander, 818 F.2d 445, 449 (5th Cir. 1987); City of
Boston v. S.S. Texaco Texas, 773 F.2d 1396, 1398 (1st Cir. 1985) (“The
rule is well settled that when a vessel under its own power collides
with an anchored vessel or a navigational structure, the burden of
proving absence of fault or vis major rests on the pilot vessel.”).
The presumption “derives from the common-sense observation that moving
vessels do not usually collide with stationary objects unless the
vessel is mishandled in some way.” Wardell v. Dep’t of Transportation,
National Transportation Safety Board, 884 F.2d 510, 512 (9th Cir.
1989).
The Appellant initially challenges the District Court’s
application of the Oregon rule on the ground that the Court erred in
finding that Hornbeck’s tug did not exercise reasonable care.
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Hornbeck claims that it offered evidence of reasonable care through
the testimony of Spurlock and Fuerstinger concerning the slow speed at
which the tug and barge were operated, the posting of Fuerstinger as
lookout in the wheelhouse, and the crew’s vigilance in the area of the
retaining wall.
“Following a bench trial, we set aside findings of fact only when
they are clearly erroneous, and we give due regard to the trial
court’s credibility determinations.” Design Strategy, Inc. v. Davis,
469 F.3d 284, 300 (2d Cir. 2006) (internal quotation marks omitted).
The Court found that Spurlock navigated the unloaded barge down the
narrow channel into the immediate vicinity of the bulkhead on the
Zerega property, became concerned that the barge’s stern would drift
into the bulkhead, and tried to straighten the barge without either
his view of the stern or that of his mate. The Court discredited
Spurlock’s and Fuerstinger’s testimony with respect to the direction
of the wind, Fuerstinger’s view of the bulkhead from the wheelhouse,
and their ability to perceive whether the barge hit the bulkhead.
While the Court did not explicitly state that Hornbeck failed to
establish reasonable care, that is the only reasonable inference
available from the Court’s opinion. Moreover, the Court’s invocation
of the Oregon rule and its subsequent consideration of the issue of
causation leaves no doubt that the Court found that Hornbeck’s tug was
not operated with reasonable care. The evidence fully supports that
finding.
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II. Causation
Although the Oregon rule creates a presumption of negligent
operation, it does not create an additional presumption that the
allision caused whatever damages are alleged. “[T]he Oregon rule
. . . speaks explicitly only to a presumed breach on the part of the
alliding vessel, and is not a presumption regarding either the
question of causation (either cause in fact or legal cause) or the
percentages of fault assigned parties adjudged negligent.” In re Mid-
South Towing Co., 418 F.3d 526, 532 (5th Cir. 2005) (footnotes
omitted). As in any negligence case, the plaintiff in a maritime
allision case bears the burden of proving by a preponderance of the
evidence that the defendant’s negligence caused the alleged damages.
See Torch Operating Co. v. M/V BLANCHE CANDIES, Civ. A. No. 92-2282,
1994 WL 320992, at *4 (E.D. La. June 28, 1994).
In the pending case, the District Court concluded that “the
defendant failed to rebut the presumption of fault, on the part of the
tug and barge, for: (a) striking the plaintiffs’ bulkhead structure,
through the negligent operation of the vessel; and (b) causing the
bulkhead structure’s collapse.” Zerega Avenue Realty, 2007 WL 3125318,
at *6. Applying the Oregon rule’s presumption to the issue of
causation was error. The burden remained on Zerega and Todino & Sons
to establish that the allision resulting from Hornbeck’s negligent
operation of the tug and barge caused the alleged damages. The
improper use of the Oregon rule to spare the Plaintiffs-Appellees the
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burden of proving that the allision, resulting from the Defendants-
Appellants’ negligence, caused the alleged damages requires a remand.
III. Preclusion of Hornbeck’s Expert Testimony
We turn now to Hornbeck’s challenge to the preclusion of its
expert witnesses. Hornbeck argues that the District Court exceeded
its discretion in precluding sua sponte the testimony of Hornbeck’s
experts Ellman and Power due to Hornbeck’s failure to comply with an
order of the Court dated March 9, 2006. That order stated that “on or
before March 22, 2006, the parties shall provide to the Court such
information as they reasonably believe will enable the Court to
fulfill the gatekeeping responsibilities imposed upon it by the
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786 (1993).” On March 21, one day before the
deadline, Hornbeck filed a motion in limine to preclude Zerega from
offering the expert opinion of Steven Schneider as to causation and
damages. Zerega neither filed a motion in limine nor submitted any
other documents concerning its expert witnesses on or before the March
22 deadline. On March 31, after the deadline, Zerega opposed
Hornbeck’s motion by filing papers, which included Schneider’s
declaration describing his qualifications and the basis for his
opinions. On May 31, Hornbeck filed affidavits containing the direct
testimony of four prospective witnesses, including Ellman and Power,
in accordance with another of the Court’s pretrial orders. On June
12, the Court issued an order precluding Hornbeck from calling its two
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expert witnesses on the basis that “neither the docket sheet . . .
nor the Court’s chamber’s file contains any record of submissions
having been made by Hornbeck, in accordance with the Court’s March 9,
2006 order, that would have enabled the Court to determine, as
required by Daubert, the propriety of permitting Messrs. Ellman and
Power to present opinion testimony.”
We review the District Court’s preclusion order for abuse of
discretion. See Softel, Inc. v. Dragon Medical and Scientific
Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997). “In
determining whether a district court has exceeded its discretion, we
consider the following factors: (1) the party’s explanation for the
failure to comply with the discovery order; (2) the importance of the
testimony of the precluded witness; (3) the prejudice suffered by the
opposing party as a result of having to prepare to meet the new
testimony; and (4) the possibility of a continuance.” Id. (citing
Outley v. City of New York, 837 F.2d 587, 590-91 (2d Cir. 1988)).
Although the trial judge is accorded considerable discretion in
enforcing its pretrial orders, we conclude that the order to preclude
Hornbeck’s two expert witnesses exceeded the discretion of the
District Court. Initially we note that the March 9 order was
susceptible to some misunderstanding, stating its requirement in terms
of what the parties themselves considered to be required for the Court
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to meet its Daubert obligation.4 More significantly, although both
parties failed to comply with the March 9 pretrial order with respect
to their own witnesses, only Hornbeck was sanctioned with the
preclusion order. Zerega was permitted to elicit the expert opinion
of Schneider, even though the documents Zerega submitted to explain
the basis for Schneider’s opinions were filed after the Court’s
deadline. Moreover, Zerega was also permitted to call White to
testify as to damages, even though Zerega did not inform the Court of
its intention to call White until May 25.
Furthermore, the testimony of Ellman was critical to Hornbeck’s
defense on the issue of causation. Ellman would have offered an
opinion, based on his inspection of the bulkhead and the barge on
December 9, 2002, that the bulkhead collapse was caused by horizontal
forces applied from the direction of the land against a deteriorated,
unattached, and undermined platform and not by a barge strike.
Without Ellman’s testimony, the opinion of Zerega’s expert Schneider
on the critical issue of causation went uncontroverted. Power would
4
The parties’ conduct appears to demonstrate some misunderstanding
of the March 9 order by both sides. It was reasonable for Hornbeck to
believe that the order required the parties to make any Daubert
challenges to their opponent’s prospective experts, which Hornbeck in
fact made in a timely manner.
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have offered an opinion, based on his inspection of the bulkhead, that
the allision did not occur.
Finally, allowing Ellman and Power to testify would not have
caused prejudice to Zerega. Zerega had already deposed Ellman and
Power during discovery, and since they were prepared to testify, there
would have been no need for a continuance.
For these reasons, we conclude that it was an abuse of discretion
to preclude Ellman and Power from testifying. On remand, Ellman and
Power should be permitted to testify.
IV. Other Evidentiary Rulings
Hornbeck’s remaining arguments, challenging a number of the
District Court’s evidentiary decisions, lack merit. Hornbeck contends
that the Court should have precluded the testimony of Schneider as
unreliable and, in the absence of his testimony, dismissed the
complaint for failure to prove that the allision caused the collapse.
The decision to admit expert testimony is left to the broad discretion
of the trial judge and will be overturned only when manifestly
erroneous. See Salem v. U. S. Lines Co., 370 U.S. 31, 35 (1962);
Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996).
Our Court has stated that a trial judge should exclude expert
testimony if it is speculative or conjectural or based on assumptions
that are “so unrealistic and contradictory as to suggest bad faith” or
to be in essence “an apples and oranges comparison.” Boucher, 73 F.3d
at 21 (internal quotation marks omitted). “[O]ther contentions that
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the assumptions are unfounded go to the weight, not the admissibility,
of the testimony.” Id. (internal quotation marks omitted).
Hornbeck’s contentions are of the latter variety. Hornbeck
argues that Schneider’s testimony should have been barred as
unreliable because he did not inspect the collapse of the bulkhead
until August 2005, performed no engineering calculations, and provided
nothing approaching an informed opinion based upon engineering
principles. While these shortcomings may diminish the probative value
of Schneider’s testimony, it was not erroneous for the Court to admit
this testimony, which was otherwise based on witness statements,
Schneider’s inspections of the bulkhead structure from 2001 to 2002,
drawings and photographs of the bulkhead, reports and videotapes
prepared by the defendants, and approximately thirty years of
engineering experience with marine structures.
Hornbeck also challenges the Court’s exclusion of photographs
purportedly showing sinkholes in the bulkhead that Hornbeck sought to
introduce through Christopher Todino. At his pretrial deposition,
Todino testified that the photographs showed the Zerega property
before the allision. The Court sustained Zerega’s objections to the
admission of the photographs for lack of a proper foundation.
The standard for admissibility of photographs requires the
witness to recognize and identify the object depicted and testify that
the photograph is a fair representation of what it purports to
portray. See Kleveland v. United States, 345 F.2d 134, 137 (2d Cir.
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1965). Although Todino’s witness identified the photographs as
“pictures of the relieving platform at 1000 Zerega Avenue,” counsel
failed to follow up with the customary question as to whether the
photographs fairly and accurately portrayed the area shown. The
objection for lack of a proper foundation was therefore properly
sustained.5
Finally, Hornbeck argues that the District Court improperly
refused to admit the testimony and email of John Bowie, an employee of
Hornbeck, who received a report from Laura Bruno about the allision.
For the purpose of impeaching Bruno, Hornbeck sought to introduce her
hearsay statement to Bowie that no one at Zerega saw the barge strike
the bulkhead and that no one identified the name of the barge until
the name was obtained from the operator of the Unionport Bridge. The
Court sustained Zerega’s objection to the testimony of Bowie on the
ground that it was hearsay, and rejected Hornbeck’s argument that the
statement was admissible as an admission because Laura Bruno was a
party to the action. We conclude that the statement was admissible
under Federal Rule of Evidence 801(d)(2)(D) because Bruno, as vice-
president of Todino & Sons, was the agent of a party to the action
acting within the scope of her employment. This error, however, was
5
It would have been preferable for the District Court, when
discussing the foundation issue with counsel at sidebar, to have
offered the helping hand of a properly framed follow-up question.
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harmless because three eye-witnesses testified to feeling the impact
of the allision and immediately seeing the tug and barge pulling away,
and the District Court found their testimony to be credible.
V. Remedy
The errors in applying the Oregon rule to the issue of causation
and in excluding Hornbeck’s expert witnesses, Ellman and Power,
require a remand. However, the issues of Hornbeck’s negligence and
the amount of damages need not be retried. Upon remand, the
Magistrate Judge should retry only the factual issue of whether the
allision occurred and the issue of causation, with the burden of proof
on the Plaintiffs. In doing so, the Magistrate Judge should make
distinct determinations as to whether the allision, if it occurred,
has been shown to have caused damage to the bulkhead and to the office
building. If causation is found, as to either or both structures, the
findings already made as to the amount of damages sustained by both
structures may stand. Since this was a bench trial, the Magistrate
Judge may rely on the existing record, supplemented by Ellman’s and
Power’s testimony and whatever additional evidence the Magistrate
Judge permits. The Defendants-Appellants’ request for reassignment to
a different judge is denied.
Conclusion
The judgment is reversed, the award vacated, and the case
remanded for further proceedings consistent with this opinion.
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