OSHA/Workplace Safety Expert Witness' testimony on alternate repair method admitted

OSHA/Workplace Safety Expert Witness’ testimony on alternate repair method admitted

This case arises from an incident at Darling’s plant in Kuna, Idaho. Darling is an animal processing company headquartered in Texas, with operations in several states including Idaho. Reymundo Cruz was employed as a maintenance worker at the Kuna plant in 2020 when he was fatally injured while repairing a machine called a “cow pusher” or “cow shovel.” This machine was designed and installed in 2010 by two Darling employees, Jose Guerrero and the decedent, Cruz. 

The cow shovel utilized pneumatic pressure to push cattle carcasses into a grinder, posing potential hazards to workers. Typically, safety measures such as lockout-tagout were implemented to prevent unexpected start-ups or energy releases during maintenance. Surprisingly, the use and maintenance of the cow shovel did not specifically mandate these safety procedures.

On April 7, 2020, Cruz was performing a repair on the cow shovel when the pressurized air caused the metal rods of the machine to extend, crushing Cruz. He died from his injuries several days later. After Cruz’s death in April 2020, OSHA inspected the Kuna plant and issued one repeat citation and five serious citations for failing to implement safety precautions and properly control hazardous energy sources.

Cruz’s spouse, children, and stepchildren filed a Complaint in Idaho State Court alleging negligence, negligence per se, and wrongful death against Darling.

Darling removed the case to federal court and moved for summary judgment on all claims against it. Plaintiff filed motions to strike the reports of Adam Aleksander and Bradley Giles.

The motions to strike filed in this case were construed as objections pursuant to Rule 56(c)(2).

OSHA/Workplace Safety Expert Witness

Bradley Giles has extensive experience with OSHA, as shown by his CV. Notably, he is a graduate member of the Institution of Occupational Safety and Health. He is also a professional member of the American Society of Safety Engineers, a Certified Safety Professional, a Safety Trained Supervisor, and possesses a Master of Science Degree in Industrial Safety. All told, he “has over 40 years of Environmental, Safety, Health & Security (ESH&S) management.”

Safety Engineering Expert Witness

Adam Aleksander is a Mechanical and Industrial Engineer, with degrees from California State Univ. San Jose, Univ. of Colorado, and a Ph.D. from Texas A&M Univ. and is a licensed Professional Engineer in multiple States. His PhD training is in Human Factors Engineering and Safety Engineering.

During a career spanning 50 years, he has wide experience in material handling, process energy systems, biomass boilers and STG’s, and investigative forensic engineering.

Discussion by the Court

Motion for Summary Judgment

Plaintiffs, here, argued that Darling’s conduct fell within the exception for unprovoked physical aggression.  This exception applies where an employer “(1) committed an offensive action or hostile attack (2) aimed at the bodily integrity of the employee with (3) an unprovoked, i.e., general, intent to injure an employee.”

Darling argued it did not know or consciously disregard any risk to employee life and limb because Cruz’s actions were not foreseeable. It argued Cruz received training on lockout-tagout protocol, knew how to operate the cow shovel, and that Cruz could have repaired the machine safely.

Plaintiffs conceded that their negligence per se claim could not fall within the exclusive remedy exception.

However, Darling was aware of its obligation to implement certain safety protocols when a machine, such as the cow shovel, used hazardous energy.

Darling routinely conducted periodic safety inspections at the Kuna plant to ensure compliance with safety requirements, but it did not identify the cow shovel as a hazardous energy source or implement safety protocols specific to the machine until after Cruz’s death. 

Accordingly, the Court granted in part and denied in part Darling’s motion for summary judgment.

Evidentiary Objections

Giles Report

The Plaintiffs objected to OSHA/Workplace Safety Expert Witness Giles’ report for several reasons. They insisted on its inadmissibility because it was attached to the declaration of defense counsel who lacked the requisite personal knowledge of a declarant. Darling had, “out of an abundance of caution,” submitted a declaration from their expert. The Court found that this rendered the objection moot.

The Plaintiffs also objected to several portions of the Giles report as speculative or improperly opining on Cruz’s state of mind. Relevant here, was Giles’ conclusion that Cruz chose to conduct the repair in the manner he did because a safer alternative existed. It did not persuade the Court that this conclusion amounted to an opinion on Cruz’s state of mind. Even to the extent it did opine on Cruz’s state of mind, the Court relied only on the Giles report for its opinion that an alternate method existed to approach the machine, which certainly did not opine on Cruz’s state of mind. The Court found that Giles reviewed the material in this case and inspected the Kuna plant and cow shovel.

Aleksander Report

Darling objected to portions of Safety Engineering Expert Witness Aleksander’s report, arguing it was speculative and offered an opinion on an ultimate issue. The Court did not rely on Aleksander’s statements that Darling “deliberately and intentionally ignored the hazard,” so it did not evaluate whether it opined on an ultimate issue. The Court, however, overruled the objections to the Aleksander Report as speculative. Aleksander’s opinions were based on depositions, OSHA citations, and his personal observations of the plant. Much like Darling’s expert, this provided sufficient foundation to render his opinion non-speculative.


The Court granted in part and denied in part Darling’s motion for summary judgment. The Court denied the motions to strike the reports of Safety Engineering Expert Witness Adam Aleksander and OSHA/Workplace Safety Expert Witness Bradley Giles.

It has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

  1. Speculation and Opinion: Both reports encountered objections regarding speculative content and opinions on ultimate issues. While the Court did not rely on certain statements from Aleksander suggesting Darling’s intent, it overruled objections to the report as speculative due to the foundation provided by depositions, OSHA citations, and personal observations. This underscores the need for experts to ground their opinions in factual evidence rather than speculation.
  2. State of Mind Opinions: Giles’ report faced objections regarding opinions on Cruz’s state of mind. However, the Court determined that the conclusion about Cruz’s choice of repair method did not constitute an opinion on his state of mind, particularly since it relied on factual observations rather than subjective interpretation. This emphasizes the importance of distinguishing between factual observations and speculative opinions on individuals’ mental states in expert testimony.

Case Details:

Case Caption:Perez, Et Al. V. Darling Ingredients, Inc., Et Al.
Docket Number:1:22cv191
Court:United States District Court, Idaho
Citation:2024 U.S. Dist. LEXIS 43678
Order Date:March 11, 2024


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