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Lucio v. Edw. C. Levy Co.

United States District Court, N.D. Ohio, Western Division

May 10, 2017

Theodore Lucio, et al., Plaintiffs
v.
Edw. C. Levy Co, et al., Defendants

          MEMORANDUM OPINION

          Jeffrey J. Helmick United States District Judge

         I. Introduction

         The matter before me arises out of an injury sustained by Plaintiff Theodore Lucio from a fall from an unguarded screen deck of a slag plant tower. Plaintiff Theodore Lucio asserts claims of negligent and defective design and construction, negligence, and products liability. (Doc. No. 23). Plaintiff Stephanie Lucio asserts a derivative claim of lack of consortium.

         There are three motions pending: (1) Defendant Edw. C. Levy Co.'s motion to exclude Plaintiff's expert, Michael Wright (Doc. No. 64); (2) Defendant Edw. C. Levy Co.'s motion for summary judgment (Doc. No. 46); and (3) Defendant North Star Bluescope Steel, LLC's motion for summary judgment (Doc. No. 49). Plaintiffs have responded to all motions (Doc. Nos. 57, 59, 67), and Defendants have replied, in turn. (Doc Nos. 63, 65, 70).

         For the reasons stated below, Levy's motion to exclude Wright's testimony is granted in part and both Defendants' motions for summary judgment are granted in full.

         II. Background

         On February 25, 2013, Plaintiff Theodore Lucio fell approximately 25 feet from the top of a slag tower while changing a screen during his course of employment. (Doc. No. 23 at 3-4). At the time, he was employed by Levy Environmental Services, doing business as Fulton Mill Service Company (“FMS”). Id. at 2-3. Lucio sustained serious injuries and filed suit against several parties, including FMS. Lucio v. Levy Environmental Services Co., 173 F.Supp.3d 558 (N.D. Ohio 2016), aff'd Lucio v. Levy Environmental Services Co., __Fed. App'x __, 2016 WL 6994230 (6th Cir. Nov. 30, 2016). Neither Defendant in this case was a party to the previous action. On March 22, 2016, Judge James G. Carr granted summary judgment to Levy Environmental Services (FMS) for the intentional tort claim asserted by Lucio. Id. As noted by all parties, the circumstances surrounding Lucio's fall from the tower were fully developed and explained during the previous case and I incorporate by this reference Judge Carr's summary. See Lucio, 173 F.Supp.3d at 561-63.

         At issue now is the alleged liability of Defendants Edw. C. Levy Co. (“Levy”) and North Star Bluescope Steel, LLC (“NSBS”) with respect to Lucio's 2013 fall. The tower in question was a part of a slag plant designed and built by Levy on the property of NSBS. (Doc. No. 47). When construction of the plant was completed in 1996 or 1997, FMS took ownership of the slag plant pursuant to the Slag Handling and Mill Services Agreement (“1996 Agreement”). (Doc. Nos. 47, 47-1). The 1996 Agreement established a business relationship between FMS and NSBS. Id. Two other documents were incorporated into the 1996 Agreement: (1) Performance and Payment Guaranty (“Guaranty”); and (2) Slag Handling and Mill Services Contract Specifications (“Contract Specifications”). (Doc. Nos. 47-1, 47-3, 47-4).

         The Guaranty designated Levy as the “Guarantor” of all of FMS's obligations to NSBS under the 1996 Agreement. (Doc. No. 47-3). The Contract Specifications provided policy goals and a more detailed explanation of the obligations and purpose of the 1996 Agreement. (Doc. No. 47-4). In 2010, FMS and NSBS executed the First Amended and Restated Slag Handling and Mill Services Agreement (“Amended Agreement”). (Doc. No. 47-2). The terms of the Amended Agreement were similar to that of the 1996 Agreement, but did not reference the Guaranty. Id. Neither Defendant contends that the Guaranty was revoked by the Amended Agreement, which was in place at the time of Lucio's fall.

          At that time of the fall, NSBS owned the compound of fenced-in property that held the FMS slag plant and NSBS's own steel mill. Pursuant to the Amended Agreement, FMS served as an independent contractor to NSBS, providing the NSBS steel mill with slag from its own plant on the property. (Doc. No. 47-1). Levy guaranteed FMS's performance of the contract to NSBS. (Doc. No. 47-3). FMS was an affiliate or subsidiary company of Levy. (Doc. No. 47, Doc. No. 60 at 11).

         III. Motion to Exclude Expert Testimony

         A witness must be qualified “by knowledge, skill, experience, training, or education” to testify. Fed.R.Evid. 702. Before admitting expert testimony, the court “must determine whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.'” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993) (alteration in original)). In this case, Michael Wright is a licensed Professional Engineer, Certified Safety Professional, and Certified Plant Engineer. (Doc. No. 57-1). There is no dispute that he is qualified to testify about matters involving those disciplines.

         Testimony of a qualified witness is admissible only if it is both relevant and reliable. See Fed R. Evid. 702; Bradley v. Ameristep, Inc., 800 F.3d 205, 208 (6th Cir. 2015); United States v. Cunningham, 679 F.3d 355, 379-80 (6th Cir. 2012). Relevant testimony “will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed R. Evid. 702 (a); Daubert, 509 U.S. at 591; Cunningham, 679 F.3d at 380. Reliability depends on “whether the reasoning or methodology underlying the testimony is scientifically valid and [ ] whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93. An expert's knowledge need not be “scientific” in nature, but could also be “technical” or “other[wise] specialized.” Kumho Tire, Ltd., 526 U.S. at 141. As noted by the Supreme Court, the test of reliability is “flexible, ” and “the law grants a district court…broad latitude when it decides how to determine reliability.” Kumho Tire, Ltd., 526 U.S. at 141-42 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)); see also Daubert, 509 U.S. at 594.

         As a gatekeeper, the court must determine whether the party offering the expert as a witness has proven the expert's proposed testimony admissible. Daubert, 509 U.S. at 592 n.10. “But ‘rejection of expert testimony is the exception rather than the rule.'” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (quoting Fed.R.Evid. 702 advisory committee's notes, 2000 amend.).

         Levy asserts that Wright's testimony should be excluded because: (1) it contradicts statements Lucio made in his reply to Levy's motion for summary judgment; (2) the statements regarding OSHA are irrelevant to negligence; (3) the testimony improperly renders legal conclusions about the interpretation of contracts; and (4) the testimony improperly renders opinions on Levy's intent. (Doc. No. 64-1).

         A. Sections (A)(1) and (B)(2)

         At the outset, Levy asserts that certain portions of these sections are inadmissible as improper testimony of intent. I agree. As noted by Judge Carr in Lucio's previous case,

Expert testimony as to intent, motive, or state of mind offers no more than the drawing of an inference from the facts of the case. The jury is sufficiently capable of drawing its own inferences regarding intent, motive, or state of mind from the evidence, and permitting expert testimony on this subject would be merely substituting the expert's judgment for the jury's and would not be helpful to the jury.

Lucio, 173 F.Supp.3d at 565 (citation omitted); see also CMI-Trading, Inc. v. Quantum Air, Inc., 98 F.3d 887, 890 (6th Cir. 1996) (“The intent of the parties is an issue within the competence of the jury and expert opinion testimony will not assist the jury, within the meaning of Federal Rule of Evidence 702, in determining the factual issue of intent.”). Accordingly, I find all statements within Wright's testimony regarding state of mind or intent to be irrelevant and inadmissible.

         With respect to the remaining content of Sections (A)(1) and (B)(2), it is true that Wright's testimony does not support a finding that the slag mill is a product for purposes of products liability. But, as with any witness, the testimony given need not support the calling party's case in full. Additionally, the mere fact that Wright is admittedly unqualified to determine whether the slag mill is a product or an improvement does not negate his ability to testify about industry regarding safety and design. (Doc. No. 67-1). The issue of inconsistency among the claims will be addressed below, but I do not find it to be grounds to exclude Sections (A)(1) or (B)(2) of Wright's expert report. Further, Levy has failed to cite any legal authority to support this argument. Therefore, Sections (A)(1) and (B)(2) may only be excluded if they are either irrelevant or unreliable; Levy argues irrelevance.

         Section (A)(1), entitled, “Standard and Industry Practice of a Normal Contractor, Including a Design-Building Entity, ” provides information about the industry standards with respect to safety considerations. Wright articulated industry standards and practices and referenced state and federal law. Wright applied these standards to form his opinion on Levy's compliance with industry safety standards. The statements made in this section assist the trier of fact in determining whether Levy's conduct was negligent or within the bounds of industry standards.

         Section (B)(2) discusses the design and construction of the slag plant. Wright specifically describes the safety features that were not-and could or should have been-included in the design of the tower. To form his opinion, Wright analyzed the facts in light of state and federal law and industry standards. These matters aid the trier of fact in determining whether the plant was negligently designed and constructed.

         Both Sections (A)(1) and (B)(2) are within Wright's expertise as an engineer and safety professional. Since I find both sections to be relevant and Levy has not made any argument that the sections are unreliable, I find the sections admissible with the exception of statements of state of mind or intent.

         B. OSHA Testimony in Section (A)

         Levy moved to exclude “Section (A)(2)” of Wright's report by way of heading in its memorandum. (Doc. No. 64-1 at 8). But after review of the argument, I believe the argument under the heading encompasses both the Policy articulated in Section (A)(2) and Wright's analysis and conclusion based on the policy in Sections (A)(3)- (A)(11). As Sections (A)(3)- (A)(11) are dependent upon the inclusion of Section (A)(2), I will address all as one.

         Wright's expertise extends to engineering and safety management. While Section (A)(2) is an OSHA policy, it does not relate to engineering principles or safety requirements. Instead it describes the allocation of duty and responsibility among employers at a multi-employer work site. Wright concluded that, based on this policy, Levy was a prime and controlling entity who actively participates. Relying on this conclusion, Wright determined that Levy both had and failed to fulfill its safety obligations at the slag plant. I do not find Wright is qualified to make these assertions. Though he may have had experience with multi-employer work sites, the interpretation of the OSHA policy and allocation of duty and fault is a matter of law, not engineering or plant safety.

         Assuming for the sake of argument that Wright was qualified to give these opinions, Section (A)(2) and the following analysis is irrelevant. In addressing the issuance of relevance Lucio asserts, “the existence of applicable OSHA violations do not establish a duty, ” acknowledging that there is no private cause of action under OSHA. (Doc. No. 67 at 11-13). Instead, he contends “[t]he various regulatory schemes analyzed by Mr. Wright serve to provide context.” Id. at 12. But if not to speak to the issue of duty of care, I do not see the “context” those sections are intended to ...


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