Olivia Hernandez and her nephew, Hector Ontiveros, Jr., were working at a pillow manufacturing plant owned and operated by Comfort Revolution Manufacturing of Mississippi, LLC, when Olivia was injured by a “molding pillow carousel” manufactured, sold, and installed by Defendant.
Hector heard a scream while working on the same assembly line as his aunt Olivia’s head was caught in a pinch point at the demolding area after she attempted to remove a pillow that fell from the mold onto the floor. This unfortunately crushed Olivia’s head, but she was eventually removed from the machine. Olivia later succumbed to her injuries at the hospital.
Defendants designated Dr. Steven R. Arndt as an expert in human factors, requesting that he “assist in the investigation and understanding of the human factors issues associated with the subject incident.” Plaintiffs designated Mark R. Cannon “to perform an analysis and evaluation of the causal factors which allowed Hernandez to become entrapped, and critique and evaluate Cannon’s responsibility as the designer and installer of the production line.”
Both parties sought to strike and exclude the other party’s expert witness.
Human Factors Expert Witness
Steven Robert Arndt is a human factors scientist with advanced degrees in industrial engineering- human factors specialization (MSIE and PhD) from the University of Wisconsin. Arndt is a consultant with substantial experience in the investigation and prevention of accidents and injuries related to consumer products, warning labels, instructions, training, industrial and occupational settings, and transportation related systems.
Mark Russell Cannon has over 25 years’ experience in forensic engineering and investigates a wide variety of mechanical and safety issues, including workplace injuries involving machinery, machinery failures and consumer product failures.
The Court is of the opinion that Cannon’s testimony and opinions should be excluded because his report relied heavily on an incorrect OSHA standard.
Cannon used the 42-inch guardrail height requirement found in OSHA 1910.29(b)(1) to show “Cannon violated OSHA regulations when they installed the ~34-inch barrier.” He also cited other organizational codes requiring a 42-inch-high railing which have no bearing on the case sub judice.
The Court found that this information was irrelevant for this case’s purposes, and while Cannon did not rely solely on this information, it is foundational to his entire expert report. Plaintiffs argued that Cannon “opined and testified that the standard shows the logic behind a 42-inch height as opposed to the 34-inch height utilized by Cannon USA in its design” and “his opinions were not asserting that the design was unsafe or unreasonably dangerous solely because of an alleged violation or failure to comply with the OSHA standard” These arguments are unconvincing because at several instances, Cannon’s report reads, “[Defendant] violated OSHA regulations.”
Steven R. Arndt
Defendant claimed that Arndt’s opinions were necessary to combat the mischaracterization of safety codes put forth by Plaintiffs’ expert, Cannon, and that his testimony was essential to refute Plaintiffs’ expert’s erroneous interpretation of code and regulatory requirements. While the Court took issue with this characterization of Arndt’s testimony, it would not upset a party’s reason for proffering an expert witness.
Therefore, because Cannon was excluded—along with the testimony Defendants specifically claimed they were using Arndt to combat—the Court struck Arndt’s testimony and opinions regarding any rebuttal against Cannon for the purpose of trial. More specifically, the Court struck the “Rebuttal” section of his expert report and any testimonial reference to it. Additionally, the Court did not permit Arndt to testify to conclusions of law or tell the jury what conclusion it should reach in this matter.
Held
The Court granted in part and denied in part Plaintiffs’ Daubert motion to exclude or limit the testimony of Steven Arndt.
The Court granted Defendant’s motion seeking to exclude Plaintiffs’ expert Mark Cannon.
Key Takeaway
An expert may never render “conclusions of law,” opine “on legal issues,” or “tell the jury what result to reach.”
Case Details:
Case Caption:
Nolazco V. Cannon USA, Inc.
Docket Number:
1:24cv12
Court Name:
United States District Court, Mississippi Northern
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.
