Expert Witness Profiler

Category: Safety Engineering Expert Witness

  • Safety Engineering Expert’s Alternative-Design Opinions Admitted

    Safety Engineering Expert’s Alternative-Design Opinions Admitted

    Plaintiff Geoffrey Long brought this action against Defendants Power Technique North America LLC (“Power Technique”) and United Rentals (North America, Inc.) (“United Rentals”), asserting claims for strict products liability, negligent products liability, and breach of warranty. Long alleged that he sustained life-altering injuries, including significant injuries to his cervical spine, when an access door of a portable air compressor fell on him while he was inspecting the machine in the course of his employment as a General Foreman at a job site in New Jersey.

    Defendants filed motions to exclude the testimony of Craig D. Clauser pursuant to Federal Rule of Evidence 702.

    Safety Engineering Expert Witness

    Craig David Clauser is an engineer with over fifty years of experience in industrial safety, machinery safeguarding, failure analysis of mechanical and structural devices, and accident investigation. He has particular expertise in metallurgical engineering and materials science, and safety engineering.

    Want to know more about the challenges Craig Clauser has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Clauser concluded that the incident and Long’s injury occurred because the subject air compressor was a “defectively designed product.” Specifically, he opined that “the design did not address the hazard of a gas spring failure allowing a door to drop and strike a user.”

    i. Insufficient Facts or Data

    Defendants first argued that Clauser’s testimony should be excluded insofar as it rests on insufficient facts or data, specifically an “assumption” that the gas strut failed. Defendants contended that Clauser’s testimony should be excluded in its entirety because it depends on Long’s eyewitness testimony that the gas strut failed. Long correctly responded that such reliance is permissible.

    Clauser was unable to inspect the gas strut at issue, which Defendants’ own expert opined had likely been discarded, and instead inspected the machine with new gas struts installed. He paired that inspection with reliance on Long’s testimony that the door fell on him after the gas strut had failed. The Court found that reliance on this evidence is sufficient. Any challenges to the credibility of Long’s testimony that the gas strut failed are better left with the jury, not the judge.

    Defendants also argued that Long’s eyewitness testimony is an insufficient fact to support Clauser’s conclusions because Clauser, in relying on that fact, “performed no analysis into why the gas struts did not need to be replaced until February 2025 by United Rentals.”

    Long responded, and the Court agreed, that Defendants misconstrued Clauser’s testimony. At his deposition, Clauser stated: “I don’t know that they weren’t replaced, and I did not really put any analysis into that.” That is not the same as Clauser admitting that “he performed no analysis into why the gas struts were not replaced until February 2025.”

    Finally, Defendants argued that Long’s eyewitness testimony is insufficient because Clauser did not rule out alternative explanations. According to the Court, where alternative explanations conflict with eyewitness testimony, an expert may rely on the eyewitness account. 

    ii. Reliable Principles and Methods

    Defendants challenged Clauser’s alternative-design opinions on the ground that he proposed those alternatives without “testing, data analysis, or calculations,” and instead merely “showed a picture of the two alternatives without any diagrams.”

    But the absence of testing, standing alone, does not render an alternative-design opinion unreliable per se. Here, Clauser’s opinion concerning the formation and necessity of alternative designs rests on his substantial experience, his personal inspection of the compressor, his review of the record, and his application of the Order of Precedence or Safety Hierarchy.

    Accordingly, the Court held that any lack of testing goes to the weight of Clauser’s opinion, not its admissibility.

    Defendants separately argued that Clauser’s methodology in providing alternative designs is insufficient because he did not independently test the lifespan of a gas strut. But Clauser’s report made it clear that he relied on the testimony of Mark MacInnis, Power Technique’s former Vice President of Engineering for its Portable Power and Flow Division, regarding the lifespan of the struts. MacInnis testified that it would be unlikely “if there was anyone in the globe who knew more about this product than me.” Clauser’s reliance on that testimony was considered permissible.

    Finally, Defendants faulted Clauser because they averred that no manufacturer had implemented his proposed alternative design. But Defendants did not meaningfully explain how that fact rendered Clauser’s methodology unreliable and cited no authority imposing a categorical requirement that an expert demonstrate industry use of the precise alternative design he proposed.

    iii. Warnings or Instructions Testimony

    Defendants also challenged Clauser’s warning opinion that Power Technique should have warned that “air springs were susceptible to unexpected failure” and that users should not rely on them as the sole means of support. Defendants contended that this opinion is improper because Clauser did not know the failure rate of the gas struts at issue, “did not know of any really sudden failure of a gas strut,” and again asserted that Clauser does not know that a gas strut failed in the subject accident.

    These arguments do not warrant exclusion of his testimony. As discussed above, Clauser relied on Long’s eyewitness testimony in concluding that a gas strut failed, and such reliance is permissible.

    Defendants next argued that Clauser’s opinion that Power Technique “could have provided instruction to the owner and maintainer of the compressor that the air springs, which Mr. MacInnis stated are inexpensive, should be replaced at a frequency that prevents end of life failures in service” is based on unsupported conjecture and speculation. The record does not support that characterization. Clauser acknowledged that the lifespan of a gas strut depends on the strut’s usage and the environment in which it is used. But that does not make replacement-frequency information unknowable or speculative.

    Defendants further faulted Clauser for not identifying similar replacement schedules for gas struts across other industries and for not relying on specific industry standards governing regular replacement of gas struts. But the absence of industry standards or comparable replacement schedules did not, by itself, require exclusion.

    Held

    The Court denied Defendants’ motions to exclude the testimony of Craig D. Clauser.

    Key Takeaway

    Clauser relied on his personal inspection of the compressor, his review of the record, and his decades of experience in engineering, safety engineering, machinery safeguarding, failure analysis, and accident investigation. Defendants’ criticisms of the factual basis for his warning opinion may go to its weight, but they do not render the opinion inadmissible.

    Case Details:

    Case Caption: Geoffrey L. Long v. United Rentals N. Am., Inc.
    Docket Number: 2:25cv4432
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: June 24, 2026
  • Safety Engineering Expert’s Testimony on the Structural Failure of the Ladder Excluded

    Safety Engineering Expert’s Testimony on the Structural Failure of the Ladder Excluded

    Plaintiff Andrew Christensen alleged that he was injured while working at Plaintiff Jessica Lawrence’s home, using an aluminum stepladder, Model W-2112-065, which was manufactured by Defendant Louisville Ladder, Inc. Plaintiff Lawrence had purchased the Ladder from Walmart, Inc.

    Christensen asserted products liability claims against Louisville Ladder based on the alleged injury.

    Louisville Ladder filed a motion to exclude the testimony of Plaintiff Christensen’s expert, Frank L. Burg.

    Safety Engineering Expert Witness

    Frank Lewis Burg is an expert in various domains, particularly general industry and construction safety and health, alongside expertise in ergonomics. His investigative experience spans injuries related to cranes, rigging, road construction accidents, falls, railroad incidents, electrical mishaps, machine guarding, gas and oil well incidents, hazardous chemicals, and cases involving human factors engineering and FELA (Federal Employees Liability Act). Beyond investigations, Burg conducts training seminars, OSHA-style audits, and offers expert testimony in his field of expertise.

    Want to know more about the challenges Frank Burg has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    Defendant argued, among other things, that Burg should be excluded because he is not qualified to render an opinion on a manufacturing defect.
    Defendant also argued that his opinions have insufficient factual foundation, are not founded in proper methodology, and only provide bottom-line conclusions without sufficient support. Finally, Defendant argued that his testimony should be excluded because he has disclosed a preliminary report only.

    Burg, a registered professional safety engineer with Accident Prevention Corporation concluded his report by writing that Christensen’s injuries were “caused by a structural failure of the Louisville Ladder. There is no indication that Christensen did anything that would cause the catastrophic failure seen in the photographs.”

    Burg characterized his report as preliminary, and at his deposition, he testified that his opinions were not final. He further admitted during his deposition that he added a statement to the report that he normally does not, reserving the right to have the Ladder examined further and potentially change his opinions because he “wrote [the] report with very limited information.” He also stated that should this case go to trial, he would want to have the Ladder tested and obtain testimony from a metallurgist or structural engineer.

    Analysis

    Burg is a qualified expert in safety practices and hazard prevention, but he is not a design expert or metallurgist. He lacked the education, training, and experience to offer an opinion that there was a construction defect in the Ladder that caused the accident.

    Moreover, Burg did not visit the scene of the accident. He did not perform any testing or complete his own investigation. In fact, he did not even inspect the Ladder. Instead, he talked to Plaintiff Christensen and relied on materials provided to him. In other words, Burg’s opinions that the Ladder had a construction defect and the defect caused Plaintiff Christensen’s injuries are based on photographs and interviews

    The Court found that in forming his opinions, Burg did not employ a proper methodology, and the opinions lacked sufficient support.

    Held

    The Court granted Defendant Louisville Ladder, Inc.’s motion to exclude the testimony of Frank Burg.

    Key Takeaway:

    Burg did not apply a methodology, and he failed to provide any explanation of the analysis he used in forming his opinions that the Ladder had a construction defect, and the defect caused the Ladder to collapse, other than to state that there is no other possible cause.

    In short, there is nothing within his report that relies upon any specific method or scientific principles that would be otherwise unavailable to the trier of fact. Burg is being offered to give the opinions that the damage to the Ladder was not merely from a fall, but rather that the Ladder collapsed, and the collapse was caused by a construction defect.

    Case Details:

    Case Caption: Christensen Et Al V. Louisville Ladder, Inc. Et Al
    Docket Number: 4:23cv136
    Court Name: United States District Court, Missouri Eastern
    Order Date: September 05, 2025
  • Expert Testimony Curtailed in Defective Conveyor Case

    Expert Testimony Curtailed in Defective Conveyor Case

    In July 2022, while working at Tyoga Container Company’s facility, William Borden stepped onto a mesh belt conveyor manufactured by Mainline Conveyor System, Inc. The conveyor unexpectedly activated and threw him off, causing severe lacerations to his left knee and lower leg. Borden claimed that the conveyor was defective and unreasonably dangerous.

    In August 2023, Borden filed a strict liability lawsuit against Mainline in the Pennsylvania Court of Common Pleas of Tioga County. The following month, Mainline removed the case to federal court on diversity grounds.

    Borden sought to exclude testimony from Mainline’s engineering expert, George J. Wharton; evidence suggesting product misuse or highly reckless conduct; evidence of assumption of risk; and evidence of his prior DUI conviction.

    Safety Engineering Expert Witness

    George J. Wharton is a professional engineer with multiple certifications, including C.F.E.I., C.V.F.I., and C.F.P.S., and holds both B.S. and M.S. degrees in mechanical engineering. Wharton serves as an expert in engineering, safety engineering, and personal injury matters.

    His work includes evaluating mechanical system design, workplace safety procedures, and incident causation. Wharton has also authored expert reports responding to opposing experts’ claims and opining on industry practices based on decades of engineering experience.

    Get the full story on challenges to George J. Wharton’s expert opinions and testimony with an in-depth Challenge Study.  

    Discussion by the Court

    Contract Interpretation

    Wharton’s opinion that Tyoga was “required” to assume safety responsibilities under its contract with Mainline crossed into legal interpretation. Since his conclusion relied on contract language rather than engineering practices, the court deemed it inadmissible.

    Design vs. Knowledge

    Wharton did not offer an opinion on Mainline’s subjective knowledge. Instead, he responded to the opposing expert’s foreseeability claim by analyzing the design differences between conveyors. This design-focused rebuttal was found admissible.

    Speculation on Plaintiff’s Behavior

    Wharton asserted that a warning decal wouldn’t have influenced Borden’s decision to cross the conveyor. This opinion was based on speculation about Borden’s mindset and was therefore excluded as outside the scope of expert testimony.

    Alarm System Commentary

    Wharton’s critique of an audio-visual alarm system addressed practical feasibility—highlighting how excessive alarms could lead to desensitization or muting. Grounded in engineering experience, this testimony was allowed.

    Post-Accident Procedures

    The Court excluded any opinion referencing Tyoga’s post-accident policies, including a sign in Wharton’s report, under the parties’ pretrial agreement.

    Held

    The Court granted in part and denied in part Plaintiff Borden’s motion to exclude the testimony of Defendant Mainline’s expert witness, George J. Wharton.

    Key Takeaway:

    An engineering expert may testify about industry practices, product design, and the feasibility of safety features, but cannot interpret contractual obligations or speculate on a party’s mental state or motivations. Courts will exclude expert opinions that cross into legal conclusions or subjective speculation.

    Case Details:

    Case Caption: Borden v. Mainline Conveyor Sys., Inc
    Docket Number: 4:23cv01486
    Court Name: United States District Court for the Middle District of Pennsylvania
    Order Date: July 21, 2025
  • Safety Engineering Expert Allowed to Opine on Codes and Industry Standards

    Safety Engineering Expert Allowed to Opine on Codes and Industry Standards

    On January 22, 2022, Sharon Marshall was dining at an Outback Steakhouse in Fort Smith, Arkansas, when she slipped, fell, and received serious injuries. She alleged that she slipped on soup that had spilled in the floor which Outback had negligently failed to clean up.

    Outback has filed motions to exclude or limit the testimony of two of Marshall’s expert witnesses: Dr. Brian Goodman, who is one of her treating physicians, and Jason English, who is an industrial and safety engineer.

    Pain Medicine Expert Witness

    Brian Goodman, M.D. is a board-certified physician in pain medicine and
    anesthesiology. He completed a fellowship in pain medicine. He frequently treats patients suffering from pain caused by slip-and-falls.

    Get the full story on challenges to Brian Goodman’s expert opinions and testimony with an in-depth Challenge Study.

    Safety Engineering Expert Witness

    Jason English is a safety engineer who has two and a half decades of experience as a consultant who performs accident cause analysis, including fall protection and prevention from elevation as well as from the same level.

    Want to know more about the challenges Jason English has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Motion to Limit Testimony of Plaintiff’s Treating Physician Brian Goodman, M.D.

    Goodman is a physician who has been providing Marshall with pain management treatment for spinal injuries which she alleges were caused by her fall at Outback. Furthermore, Goodman has also been retained to offer opinion testimony as an expert witness in this case. Specifically, those opinions include the opinion that the spinal injuries and associated pain that he has been treating were caused or worsened by Marshall’s fall at Outback.

    However, Outback argued that Goodman should not be allowed to offer these opinions, for two reasons. Firstly, Outback contended that Goodman is not qualified to opine on what caused the injuries that are the subject of this case because he is not a spinal specialist, did not perform surgery in this case, and is not an orthopedic surgeon, neurologist, diagnostic radiologist, or biomechanical engineer. Secondly, Outback maintained that Goodman’s causation opinions are speculative and unreliable because they are based only on Marshall’s statements to him and not on “any sort of scientific analysis” nor on the review of “any additional medical records, depositions, photographs, or otherwise.”

    Analysis

    The Court found that Goodman was qualified to offer his opinions in this case. Specifically, he has been treating Marshall for pain that he believes was caused by the injuries that are the subject of this lawsuit.

    As for Outback’s second argument regarding the reliability of Goodman’s methodology: the Court believed his methods were sufficiently reliable to satisfy the requirements of Rule 702. Outback fixates on the relatively small number of materials Goodman reviewed during the first period when he was treating Marshall, during which time it seems he was relying primarily on her reports to him of her pain to inform his decisions and was unaware of significant parts of her medical history including possibly even the fact of her fall at Outback. However, the critical question for the admissibility of Goodman’s opinions in this case is not what he knew or didn’t know at the time he began treating Marshall, but rather what informed his opinions at the time that he offered them for purposes of this litigation.

    And Goodman has testified that before offering his most recent expert report in this case he reviewed many binders of materials containing Marshall’s medical history, both pre-fall and post-fall, and that his opinions in this case were informed by his review of those materials as well as his personal experience treating Marshall and her reports to him of her pain, and his experience treating patients with injuries from slip-and-falls more generally.

    Motion to Exclude Plaintiff’s Expert Jason English

    Marshall retained English to offer expert opinions about whether the spill caused her fall (he opines it did), and about whether Outback’s response to the alleged spill hazard and training of its employees to deal with such hazards was consistent with industry standards (he opines it wasn’t). Outback offered two arguments for excluding English’s opinions. First, they contended his opinions were not reliable. Second, they said his opinions were not specialized.

    Analysis

    Regarding reliability, Outback argued that English “is not a hospitality or restaurant expert,” and that his opinions are not based on any examination or testing of the specific floor and restaurant at issue in this case. On the first point, however, English holds a certification in the measurement and evaluation of pedestrian traction on walking surfaces, and is a member of the “ASTM International F13 Committee on Pedestrian/Walkway Safety and Footwear.” The Court determined that clearly has expertise in the topics on which he is opining.

    As for testing on the specific floor where Marshall fell, English testified that
    he saw no point in testing that floor. Instead, English based his analysis on the deposition testimony, photographs, and document discovery that were produced in this case.

    According to English, “the floor in this particular case is just a common commercial flooring found not only in restaurants but other types
    of commercial facilities as well.”

    Regarding whether English’s opinions are specialized: Outback insisted that “[t]here is nothing specialized, scientific, or particularly technical about his opinion. He has simply looked at all the evidence of record and come to a conclusion. The jury can do the same.”

    The Court disagreed. English’s report extensively discussed codes and industry standards around, for example, slip resistance, spills,
    warning signs, and cleaning methods, and opined that Outback failed to meet them. He also discussed the “authoritative literature” on “ordinary human
    factors” that can influence patrons’ awareness of hazards.

    Held

    The Court denied the Defendant Outback Steakhouse of Florida, LLC’s motion to limit testimony of Plaintiff’s treating physician Brian Goodman, M.D and motion to exclude Plaintiff’s expert Jason English.

    Key Takeaway:

    • Goodman took care to emphasize the difference between what information he relied on in forming his opinion of how to treat Marshall and what information he relied on in forming his opinions that were offered for purposes of this litigation.
    • English’s report extensively discusses codes and industry standards around, for example, slip resistance, spills, warning signs, and cleaning methods.

    Case Details:

    Case Caption: Marshall V. Outback Steakhouse Of Florida, LLC
    Docket Number: 2:23cv2119
    Court Name: United States District Court, Arkansas Western
    Order Date: April 11, 2025
  • Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Plaintiff Guadalupe Garcia Al-Dahwa (“Al-Dahwa”) alleged that she suffered personal injuries as the result of a trip-and-fall accident in the parking lot of a movie theater owned by American Multi-Cinema, Inc. (“AMC”). Al-Dahwa averred that AMC had failed to warn her of the dangerous condition.

    Al-Dahwa, who said she suffered from a physical disability, contended she tripped and fell in a ‘designated walkway because the concrete in the walking area was cracked, broken, and not level.

    Plaintiff designated Jason English as a testifying expert witness. Jason English opined that the principal causative factor related to [Al-Dahwa’s] fall was the presence of an abrupt vertical rise and broken concrete disrepair in the accessible route providing access to the disabled parking area.

    AMC insisted that English’s proffered opinions will not help the jury understand the evidence or determine a fact issue. Second, AMC argued that the probative value of English’s opinions are substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. 

    Safety Engineering Expert Witness

    Jason English is a licensed Professional Engineer, holding a B.S. in Industrial Engineering with a specialty in Systems Safety Engineering and an M.S. in Safety Engineering from Texas A&M University. English has also completed post-graduate coursework in the Department of Architecture at Texas A&M, focusing on the evaluation and design of means of egress components. He is a member of the American Society of Safety Professionals, Human Factors and Ergonomics Society, National Safety Council, and International Code Council. Since 1999, English has worked as a professional engineering consultant, primarily consulting in the field of safety engineering, including workplace safety, premises safety, product safety, safety management, and human factors/ergonomics. He also serves on several safety standard development committees for the American Society of Testing and Materials International.

    Get the full story on challenges to Jason English’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Reliability and Relevance Of English’s Opinions

    In AMC’s view, this is a relatively simple and straightforward case: Al-Dahwa “contended that she tripped and fell over a clearly visible area of concrete that was cracked and unlevel.” 

    In response, Al-Dahwa argued that English’s testimony will assist the jury because his knowledge and experience on the issues relevant to the case are beyond that of the average juror. 

    The Court found the subjects that English intended to address at trial were directly relevant to the elements of Al-Dahwa’s premises liability claim. For example, English planned on testifying that pedestrians, like Al-Dahwa, frequently fail to see hazards in front of them as they walk. This opinion, which English based on published human factors literature, was relevant to both the second element (whether the uneven surface on the walkway posed an unreasonable risk of harm) and the fourth element (proximate causation).

    English also intended to testify that the walkway where Al-Dahwa tripped and fell did not comply with the ADA, the TAS, and other applicable safety codes. This testimony was relevant to the third element of a premises liability claim—whether AMC failed to take reasonable case to reduce or eliminate the risk.

    Similarly, English’s proposed testimony that AMC should have “establish[ed] and implement[ed] a proper safety program to identify, evaluate, and correct hazards with the reasonable potential to cause serious injury” also addressed the third element.

    English’s Testimony Was Not Unfairly Prejudicial

    AMC argued that English’s testimony should be excluded under Rule 403 because it “would unfairly prejudice [AMC], confuse the issues, mislead the jury, and improperly bolster [Al-Dahwa’s] liability position.” The Court held that AMC was simply trying to recast its arguments concerning the reliability and relevance of English’s opinion through the lens of Rule 403. The Court already flatly rejected those arguments.

    Held

    The Court granted the Defendant’s motion to exclude the testimony of Jason English.

    Key Takeaways:

    • Once the proponent of an expert meets the threshold requirements of expertise, reliability, relevance, and helpfulness, the Court should generally admit the evidence.
    • English’s knowledge and experience related to the safety and accessibility codes applicable to where the incident occurred, safety engineering, when and how falls occur on premises are beyond that of the average juror. 

    Case Details:

    Case Caption: Garcia Al-Dahwa V. American Multi-Cinema, Inc Et Al
    Docket Number: 4:23cv2010
    Court: United States District Court, Texas Southern
    Order Date: July 11, 2024
  • 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.

    Held

    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
  • Architecture Expert Witness Testimony on Causation and Floor Safety Admitted

    Architecture Expert Witness Testimony on Causation and Floor Safety Admitted

    On December 12, 2020, Lynda S. Rowland and Patricia M. Stallcup planned to dine at the Outback Steakhouse in Shreveport.  Rowland, who arrived first, slipped while walking to a small booth in the lounge area but managed to break her fall by reaching and grabbing the back of an adjacent booth. Shortly after,  Stallcup arrived and also slipped as she approached the booth where  Rowland was waiting.  Stallcup fell to the floor onto her knees. Both individuals suffered personal injuries from the slips, with  Rowland primarily to her knees and  Stallcup to her ankle and back.

    The Plaintiffs individually initiated legal actions against the Defendants in the First Judicial District Court, Caddo Parish, State of Louisiana. The Defendants subsequently removed the suits to Louisiana Western District Court, citing diversity of citizens. The Court consolidated the separate suits.

    The Defendants, namely Outback Steakhouse of Florida, LLC, d/b/a Outback Steakhouse, Bloomin Brands, Inc. d/b/a Outback Steakhouse, and National Retail Properties, L.P., argued that  Rowland was in proximity to the booth where she allegedly slipped but did not fall.  Rowland stated she neither saw anything on the ground nor touched the floor or the bottom of her shoes. She testified that an Outback employee wiped the floor after her slip, and she observed nothing on the towel.

     Stallcup, walking toward  Rowland, fell at least one booth away from their original position. Initially, she fell on her knees and then landed on her buttocks. Neither  Stallcup nor  Rowland noticed anything on the floor before or after the incident.  Stallcup was unaware of any residue on her knees, buttocks, or shoes. She testified that a different Outback employee cleaned the area where she fell, and neither of them observed anything on that towel.

    To conclude, this slip and fall case involves two incidents that occurred on December 12, 2020, at the Outback Steakhouse restaurant in Shreveport, Louisiana. Plaintiffs Lynda Rowland and Patricia Stallcup claim that inadequate maintenance leading to a slippery floor caused their accidents and resulting injuries on that date. The Defendants, Outback Steakhouse, dispute these claims, contending, among other arguments, that no hazardous condition existed. Both parties presented expert testimony regarding causation under Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6(B).

    The Court had before it two Daubert Motions: firstly, Plaintiffs filed a Motion to Exclude the Testimony, Report, and Opinions of Defendants’ Expert Mitchell Wood, and secondly, Defendants submitted a Motion to Exclude the Testimony, Report, and Opinions of Plaintiffs’ Expert Jason English. Additionally, Defendants filed a Motion to Strike the Affidavit of Jason English.

    Architecture Expert Witness

    Mitchell Allen Wood, currently serving as the Principal at ArchitectniX APAC, brings a wealth of expertise to his role, grounded in a comprehensive educational background and extensive work experience. He has obtained a Bachelor of Science in Civil Engineering from Louisiana State University and a Bachelor of architecture from Tulane University. He has further completed a Masters of Architecture from Tulane University and a Masters of Business Administration from the University of Maryland. Over the course of his career, Wood has been involved in numerous new, repair, and renovation projects, specifically in culinary and eating facilities. With a background in code enforcement and a keen understanding of restaurant environments, he possesses a thorough awareness of the safety requirements for pedestrian means of egress, emphasizing the need for hazard-free and secure pathways.

    Safety Engineering Expert Witnesses

    Jason T. English, is a seasoned professional engineering consultant who specializes in safety engineering, encompassing workplace safety, premises safety, product safety, safety management, and human factors/ergonomics. He holds a Bachelor of Science degree in Industrial Engineering and a Master of Science degree in Safety Engineering, both earned at Texas A&M University (College Station). He owns English Engineering Inc., which provides professional consultation services in the field of safety engineering, to include workplace safety, premises safety, product safety, and human factors/ergonomics.

    Discussions by the Court

    Federal Rule of Evidence 702 governs the admissibility of expert testimony, requiring the proponent to demonstrate that the expert’s knowledge will aid the trier of fact, the testimony is based on sufficient facts, the methods are reliable, and the application to the case is reliable. The Daubert factors, including testability, peer review, error rate, and general acceptance, guide the evaluation of reliability. The trial court acts as a gatekeeper, ensuring the testimony is both reliable and relevant. However, the Court’s role is not a replacement for the adversary system, and the rejection of expert testimony is the exception rather than the rule. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are emphasized. The proponent bears the burden of proving that the expert testimony meets Rule 702 requirements. 

    The Plaintiffs sought to exclude the testimony of defense expert Mitchell Wood, alleging that his causation opinions were unreliable and that he lacked the necessary education and training as a safety engineer to qualify for giving opinions on floor maintenance. However, the Court, after evaluating Wood’s credentials and extensive experience, determined that he was qualified to testify as an expert in the case, including offering opinions on causation and floor safety. The Court highlighted Wood’s educational background, which included a bachelor’s degree in civil engineering and master’s and bachelor’s degrees in architecture. Furthermore, Wood held licenses in commercial construction, inspection, and architecture, and his 34 years of experience as a certified code review architect, licensed general contractor, licensed building inspector, and civil engineer were considered as additional qualifications for his role as an expert in the case.

    The Court determined that Mitchell Wood’s opinions and report were grounded in sufficient facts and data. Upon review of the record, the Court found no mischaracterization of facts or use of inadmissible evidence in Wood’s work. It was observed that Wood had considered, for the most part, the same evidence that the Plaintiffs’ expert had reviewed. The Court advised the Plaintiffs to focus on robust cross-examination and the presentation of contrary evidence to contest Wood’s opinions. Additionally, the Court believed that Wood’s expert opinions would aid the jury in considering Section 2800.6(B). Consequently, the Plaintiffs’ Motion to Exclude the Testimony, Report, and Opinions of Defendants’ Expert Mitchell Wood was denied.

    Defendants raised objections to the report of Plaintiffs’ expert, Jason English, arguing that it contained numerous speculative assumptions and conjectures without factual evidence to support them. The defense asserted that English’s report was unreliable and irrelevant to the elements required in Section 2800.6(B). Specifically, Defendants criticized English’s theories of causation related to grease build-up on the floor and the use of improper cleaning products, claiming that these theories would mislead and confuse the jury.

    In response, Plaintiffs reiterated their focus on English’s report and introduced an affidavit from English, emphasizing factors relevant to determining whether the floor maintenance practices at Outback created an unreasonably dangerous condition. However, Defendants filed a Motion to Strike the affidavit, contending that it violated Federal Rule of Civil Procedure 26(a)(2)(D) as the additional information should have been included in English’s initial report.

    After thorough review of the arguments presented in both defense motions, the Court acknowledged that presenting the affidavit in response to the defense Daubert motion was not ideal. However, the potential prejudice to the defense was considered to be mitigated by the trial date being reset to May 2024. The Court expressed the belief that Jason English’s explanations and opinions, covering various standards in the restaurant industry, technical aspects of floor cleaning fluids and methods, proper application, and the consequences of improper use, were grounded in sufficient factual evidence. The Court concluded that English’s testimony would assist the jury in evaluating the elements required under Section 2800.6(B). It was noted that the defense retained the option to conduct rigorous cross-examination, and jurors would be instructed to weigh English’s testimony appropriately based on the facts and testimony presented during the trial. Consequently, both Defendants’ Motion to Exclude the Testimony, Report, and Opinions of Plaintiffs’ Expert Jason English and Defendants’ Motion to Strike the Affidavit of Jason English were denied.

    Held 

    The Court denied Plaintiffs’ Motion to Exclude the Testimony, Report, and Opinions of Defendants’ Expert Mitchell Wood. Furthermore, the Court denied both Defendants’ Motion to Exclude the Testimony, Report, and Opinions of Plaintiffs’ Expert Jason English and Defendants’ Motion to Strike the Affidavit of Jason English.

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

    Key Takeaways

    In this slip and fall case stemming from incidents at an Outback Steakhouse, both parties presented expert testimony related to causation under Louisiana’s Merchant Liability Statute. The Court addressed Daubert motions concerning the admissibility of expert testimony, focusing on the qualifications and reliability of the experts. Plaintiffs sought to exclude the testimony of defense expert Mitchell Wood, citing his lack of requisite qualifications. However, the Court determined that Wood’s extensive experience and education qualified him to testify, and his opinions were grounded in sufficient facts. The Court encouraged vigorous cross-examination by the Plaintiffs. On the other hand, Defendants challenged the reliability and relevance of Plaintiffs’ expert, Jason English, arguing that his report contained speculative assumptions. On presenting an affidavit from English in response to the Daubert motion, the Court allowed it despite allegations that the affidavit violated Federal Rule of Civil Procedure 26, stating that potential prejudice was mitigated by the trial date being reset. The Court deemed English’s opinions, covering restaurant industry standards and floor maintenance practices, grounded in sufficient factual evidence, and concluded that his testimony would aid the jury. Both experts’ testimonies were deemed admissible, underscoring the importance of thorough qualifications, reliability, and flexibility in applying Daubert principles in expert testimony admissibility.

    Case Details 

    Case Caption Rowland v. Outback Steakhouse of Fla., LLC
    Docket Number 5:22cv667
    Court United States District Court, Louisiana Western
    Citation 2024 U.S. Dist. LEXIS 9648
    Order Date January 18, 2024
  • Safety Engineering Expert Witness’ testimony on non-scientific issues stands rejected after the Court upheld the applicability of Daubert Analysis

    Safety Engineering Expert Witness’ testimony on non-scientific issues stands rejected after the Court upheld the applicability of Daubert Analysis

    Sheila A. Skaggs filed a lawsuit against Ferrellgas, the supplier of liquid propane and propane dispensing equipment, after sustaining injuries from an explosion at Faurecia Gladstone, a facility owned by Faurecia USA Holdings, Inc. The incident took place when an LP tank exploded while Skaggs was working at Faurecia. The equipment involved, including the LP tank and its connecting hose, was installed, maintained, inspected, and repaired by Ferrellgas. The explosion occurred as a Faurecia employee drove away from the fueling station with the hose still connected, resulting in it tearing apart and causing an LP gas leak. Skaggs alleged that Ferrellgas was negligent in their installation, maintenance, inspection, and repair of the equipment.

    Skaggs presented a report authored by Frank Burg, a Certified Safety Professional and Registered Professional Safety Engineer, along with his curriculum vitae. Burg aimed to offer expert opinions asserting that Ferrellgas’s propane dispenser was defective due to lacking a lock-out procedure and a retractable hose. Additionally, Burg suggested that Ferrellgas fell under Occupational Safety and Health Administration (OSHA) regulations based on the multi-employer doctrine. Drawing from his 45 years of experience in safety and health, Burg’s opinions were supported by his review of investigation photographs, emails, and documents. He also provided insights into general OSHA and National Fire Protection Association (NFPA) standards.

    Defendant/Third Party Plaintiff Ferrellgas, Inc’s (“Ferrellgas”) filed a motion to exclude Frank Burg’s expert opinion testimony.

    Safety Engineering Expert Witness

    Frank Burg is an expert in various domains, particularly general industry and construction safety and health, alongside expertise in ergonomics. His investigative experience spans injuries related to cranes, rigging, road construction accidents, falls, railroad incidents, electrical mishaps, machine guarding, gas and oil well incidents, hazardous chemicals, and cases involving human factors engineering and FELA (Federal Employees Liability Act). Beyond investigations, Burg conducts training seminars, OSHA-style audits, and offers expert testimony in his field of expertise.

    Discussion by the Court

    Skaggs contended that Frank Burg’s expert testimony would aid the fact-finder by establishing Ferrellgas’s breach of duty, citing industry safety standards relevant to Ferrellgas encompassing both OSHA and NFPA standards. Ferrellgas moved to exclude Burg’s specific opinions regarding the necessity of a lock-out procedure and a retractable hose in their dispenser, as well as the assertion that Ferrellgas fell under OSHA regulations due to the multi-employer doctrine. Ferrellgas argued that Burg’s testimony lacked reliability per Rule 702 and Daubert standards, citing the absence of articulated methods for forming opinions and the inapplicability of safety standards to the case’s facts.

    During oral arguments, Ferrellgas highlighted that Burg hadn’t taken scene photos, conducted tests, made calculations or diagrams, performed interviews, reviewed articles, visited other plants or propane companies, or examined forklift refueling practices elsewhere. These factors were raised to challenge the credibility and relevance of Burg’s opinions in the case.

    Ferrellgas contended that Frank Burg’s attempt to apply OSHA regulations lacked methodological foundation, asserting that as the installer of propane dispensing equipment, they were not subjected to OSHA regulations for Faurecia’s employees. Additionally, Ferrellgas argued that Burg’s reference to the multiemployer doctrine didn’t withstand legal scrutiny and was inappropriate as a subject for opinion testimony. The company further maintained that Burg’s efforts to interpret OSHA regulations were flawed since matters of law, including Burg’s opinion on Ferrellgas falling within the multiemployer doctrine and being under OSHA regulation, were not suitable topics for expert testimony in the case.

    Skaggs acknowledged that Frank Burg’s opinion lacked scientific methodology but argued that its non-scientific nature exempted it from requiring a Daubert analysis. Skaggs asserted that Burg, as a Certified Safety Professional, fulfilled the criteria of Federal Rule of Evidence 702 by aiding the fact-finder in determining Ferrellgas’s breach of duty, presenting evidence encompassing both OSHA and NFPA standards.

    Skaggs further argued that Burg wasn’t obligated to visit the scene or address other criticisms to provide an opinion. The extensive review of documents and deposition testimony formed a substantial basis for Burg’s opinions according to Skaggs. Skaggs concluded by asserting that Burg’s testimony met admissibility requirements under Fed. R. Evid. 702, deeming it reliable and helpful for the fact-finder in crucial matters of the case. Any concerns about its reliability, Skaggs claimed, should pertain to the evidence’s weight, a determination within the jury’s purview.

    The Court acknowledged Frank Burg’s expertise, affirming his qualifications in the field. However, the Court disagreed with Skaggs’ assertion that a Daubert analysis was unnecessary. It stated that all experts, regardless of their expertise based on experience, are subject to the relevance and reliability assessments mandated by Daubert.

    In Burg’s report, he presented opinions based on his extensive experience but omitted explanations regarding the analysis behind these opinions. The Court emphasized that despite the non-scientific nature of the issues, all experts are required to elucidate their methodology for reaching opinions, enabling the court to evaluate relevance and reliability. Since Burg failed to provide this essential methodology, the Court determined his experience alone couldn’t establish the required reliability under Rule 702, citing Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 419 (7th Cir. 2005). Notably, Rule 702(d) was amended to stress that each expert opinion must stem from a dependable application of the expert’s basis and methodology. Even for non-scientific matters, experts are obligated to use reliable methods and principles, which Burg failed to do in this instance.

    Burg’s qualifications suggest expertise in the scientific method and accident investigations, yet he failed to apply any methodology in forming opinions regarding the necessity of a lock-out procedure or a retractable hose. He admitted to not conducting an investigation into the accident but rather relied on others’ investigations. Additionally, he didn’t perform any inspections and provided no explanation or analysis supporting his conclusions. Rule 702 necessitates that an expert’s opinion goes beyond a mere “bottom line” and demands a clear explanation of the methodologies and principles behind their opinion. Burg’s failure to elucidate his methodologies led to his expert opinions on this matter being deemed inadmissible under Rule 702’s admissibility requirements.

    Ferrellgas moved to exclude Burg’s opinions stating that Ferrellgas, as a “creating employer,” for creating the hazard by not having safeguards on their equipment and the application of the “multiemployer worksite doctrine” subject them to OSHA regulations. They argued that Burg’s attempt to apply OSHA regulations lacked methodological support as Ferrellgas, being the installer of propane equipment, wasn’t under OSHA regulations for Faurecia’s employees. Ferrellgas contended that Burg’s reference to the “multiemployer doctrine” was legally unsound and unsuitable for opinion testimony.

    Burg’s opinions lacked analytical support, failing to explain how he reached his conclusions. His assertion that Ferrellgas qualifies as a “creating employer” and the application of the “multiemployer” doctrine constituted improper opinions since experts aren’t permitted to opine on legal conclusions. The Court deemed this opinion testimony unhelpful to the fact-finder, stating that legal conclusions could lead to unfair prejudice, confusion, or misguidance of the jury. As a result, the Court decided to exclude Burg’s expert testimony concerning Ferrellgas’s purported violations of OSHA standards and the multiemployer doctrine.

    Held

    Ferrellgas’ motion to exclude Frank Burg’s expert opinion testimony was granted by the Court.

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

    Key Takeaways:

    The case highlights several critical aspects regarding expert witness testimony. One crucial factor is the necessity for a clear and well-defined methodology behind an expert’s conclusions. Whether grounded in experience or scientific analysis, the Court emphasizes that a detailed methodology is vital to establish the reliability and relevance of expert opinions, aligning with standards set by Daubert and Rule 702. Experts are obligated to provide explanations beyond mere conclusions, offering insights into their methodologies to aid the Court in evaluating the weight and credibility of their testimony.

    Moreover, experts are cautioned against delving into legal conclusions. The focus of their opinions should remain within their area of expertise, steering clear of offering legal assessments, as this can confuse or unfairly influence the jury. The case underlines the importance of separating expert analysis from legal interpretations, preserving the clarity and objectivity of expert testimony.

    In this context, the admissibility of expert testimony hinges on meeting stringent criteria: reliability, relevance, and the articulate presentation of methodologies used in forming opinions. Experts are expected to uphold these standards, ensuring their insights provide valuable, factual analysis rather than legal conjecture.