Robert Henderson v. Black Elk Energy Offshore ( 2019 )

Case: 18-20482 Document: 00515076001 Page: 1 Date Filed: 08/14/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20482 August 14, 2019
Lyle W. Cayce
ROBERT HENDERSON, Clerk
Plaintiff-Appellant,
v.
BLACK ELK ENERGY OFFSHORE OPERATIONS, L.L.C.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-1024
Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
Defendant Black Elk Energy Offshore Operations hired an independent
contractor, Bagwell Energy Services, to work on its offshore platform. Plaintiff
Robert Henderson, a Bagwell employee, sued Black Elk for injuries he
sustained while moving materials on the platform. The district court granted
summary judgment to Black Elk because it did not have “operational control”
over Bagwell’s work. Henderson appeals.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 18-20482
As an initial matter, Black Elk argues this Court lacks appellate
jurisdiction because Henderson appealed from the district court’s denial of his
Rule 59(e) motion rather than the final judgment itself. Our precedent
forecloses that argument. See Alexander v. Wells Fargo Bank, N.A., 867 F.3d
593, 597 (5th Cir. 2017) (holding a “notice of appeal from the denial of a timely
Fed.R.Civ.P. 59(e) motion brings up the underlying judgment for review”).
On the merits, we agree with the district court, essentially for the
reasons given in its memorandum opinion and order. The contract expressly
provided that Black Elk would not have operational control, and Henderson
admitted that Black Elk did not tell him how to do his job. Henderson’s
strongest argument to the contrary is that Black Elk and Bagwell jointly
informed Henderson he should move the materials manually. But it does not
matter who communicated the decision to Henderson; what matters is who
decided how the materials should be moved. Moreover, even if Black Elk
decided the materials should be moved manually, there is no evidence Black
Elk controlled how Henderson moved the materials manually.
Thus, Henderson presented no evidence Black Elk exercised “direct
supervision over the step-by-step process of accomplishing the work such that
[Bagwell was] not entirely free to do the work in [its] own way.” Fruge ex rel.
Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003); see also Ukudi
v. McMoran Oil & Gas, L.L.C., 587 F. App’x 119, 123 (5th Cir. 2014) (per
curiam). This is a far cry from cases in which the defendant exercised control
by, for example, “reject[ing a contractor’s] proposal for budgetary reasons.”
Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 613 (5th Cir. 2018).
Henderson also argues the district court erred in excluding an expert
report from Robert E. Borison. The district court correctly prevented
Henderson from using the report’s “factual recitation” to avoid summary
judgment. Borison lacked personal knowledge of the facts contained in his
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Case: 18-20482 Document: 00515076001 Page: 3 Date Filed: 08/14/2019
No. 18-20482
report. That an expert may be “permitted to disclose hearsay for the limited
purpose of explaining the basis for his expert opinion” does not mean his report
can be offered as “general proof of the truth of the underlying matter.” Fox v.
Taylor Diving & Salvage Co., 694 F.2d 1349, 1356 (5th Cir. 1983); see also
Williams v. Illinois, 567 U.S. 50, 69 (2012) (plurality opinion); FED. R. EVID.
703 advisory committee’s notes to 2000 amendment.
The judgment is AFFIRMED.
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