Coffey v. Chevron USA Inc

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Case 2:16-cv-00001-SWS Document 41 Filed 01/04/17 Page 1 of 9

United States District Court
For The District of Wyoming

SHARON COFFEY, as the Wrongful Death
Representative of Thomas Wayne Coffey,
deceased,

Plaintiff,

Civil No. 2:16-cv-00001
vs.

CHEVRON U.S.A. INC. a/k/a Chevron

North American Exploration and Production
Co., and/or Chevron U.S.A. Production Co.,

Defendant.

ORDER ON MOTION TO STIKE EXPERT TESTIMONY

Defendant filed its Motion to Strike Opinions of Plaintiff's Expert Witness Edward
Ziegler, P.E. C.\S.P. on December 2, 2016 [Doc 33]. The Plaintiff filed her response on
December 16, 2016 [Doc 37]. After review of the pleadings in this matter the Court has
determined that oral argument or further information is not necessary to the decision on this
motion. The motion is granted in part and denied in part.

Defendant does not seek to strike Mr. Ziegler as an expert witness in all aspects, but
rather focus on three areas in which it believes his proffered opinions are not admissible
pursuant to Federal Rule of Evidence 702 and the doctrine as originally set forth in Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Mr. Ziegler is

a registered professional engineer and a certified safety professional who was timely

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

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designated by Plaintiff in this matter to testify generally as to matters of workplace safety at
the Defendant’s Glencoe Junction Sulfur Terminal as relating to the fall and death of Thomas
Wayne Coffey on February 26, 2014. Mr. Coffey was employed as a truck driver for
Bonneville Transloaders, Inc. (“BTI”), and his duties included the loading of molten sulfur at
the Defendant’s facility. The process of loading the sulfur involved working at an elevated
location on the top of the BTI truck and trailer being operated by Mr. Coffey. The loading
facility was equipped with a safety railing/cage which was lowered over the top of the trailer
in the area the BTI truck drivers were required to work in the process of loading the molten
sulphur. The Plaintiff alleges that the safety cage was dangerous and defective, in part
arising from the fact that the lower railing had been removed at some point in time which
allowed a gap through which Mr. Coffey fell to his death. Plaintiff further alleges that
Chevron failed to provide other fall protection to the truck drivers using the facility. Mr.
Ziegler’s expert designation addressed these issues.
The Defendant’s motion is directed to three of Mr. Ziegler’s opinions.
1. Mr. Ziegler’s statement that Defendant’s post-accident measures were not remedial
measures. At paragraph 1.25 of Mr. Ziegler’s report he stated:
The changed elevated loading station and adding other safety procedures
(such as fall protection systems) and equipment after the incident was not
a remedial measure; but was simply what Chevron should and could have
easily accomplished earlier to make its workplace proper and safe.
2. Mr. Ziegler’s opinion expressed in discovery that Defendant’s personnel, or a
contractor hired by Defendant, removed the third rail from the safety cage.

3. Mr. Ziegler opined that the lack of documents indicates that Defendant failed to

follow and document it safety management system and in Defendant’s opinion, Mr.

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Ziegler inferred that Defendant withheld, hid or destroyed such documents.
DISCUSSION

Federal Rule of Evidence 702 and Daubert
The Defendant seeks to invoke this Court’s “gate-keeping” function in regard to
specific areas of Mr. Zeigler’s expected testimony. Rule 702 states:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts
of the case.

The burden is upon the proponent of the evidence to establish its admissibility by a
preponderance of the evidence. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965,
970, n. 4 (10° Cir.2001). In Kumho Tire Co. LTD., v. Carmichael, 526 U.S. 137, 119 S.Ct.
1167 (1999) the Supreme Court expanded the Daubert gatekeeping role from that of purely
scientific principles to those involving “technical or other specialized knowledge” as set forth
in Federal Rule of Evidence 702. In doing so the Supreme Court emphasized the flexibility
of the factors which may be considered by the trial court in the performance of its gate-
keeping function.

The review of admissibility of expert testimony is a two-step process. Ralston, 275

F.3d at 969. Initially the court must determine if the expert is qualified by knowledge, skill,

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experience, training, or education to render the stated opinion’. If qualified, then the court
looks to the relevance and reliability of the testimony.

Under the second step, “the court must determine whether the expert's opinion
is reliable by assessing the underlying reasoning and methodology, as set forth
in Daubert.” In making its reliability determination, the court may ask the
following types of questions: (1) whether the theory or technique has been
tested (or can be tested); (2) whether the theory or technology has been
subjected to peer review and publication; (3) whether there is a known or
potential high rate of error; (4) whether there are standards controlling the
techniques of operation; and (5) whether the theory or technique is generally
accepted within the relevant community. It must be kept in mind, however,
that these factors are not exclusive and may not apply in some cases.
Additionally, even if the reasoning or methodology underlying the opinion is
scientifically valid, the court must consider whether the reasoning or
methodology was properly applied to the facts in issue. (citations omitted).
Utility Trailer Sales of Kansas City, Inc. v. MAC Trailer Mfg., 267 F.R.D. 368,
370 (D. Kan. 2010)

With this in mind the three contested areas of testimony will be reviewed.
Remedial Measures:

There are two prongs to the Defendant’s motion. First, that Mr. Ziegler’s testimony is
an opinion of law and not a proper subject of expert testimony. Second, that the Court
should not admit any testimony regarding remedial measures. The admissibility of
subsequent remedial measures is controlled by Federal Rule of Evidence 407 and will not be
addressed in this order. That is a matter upon with the trial judge will rule if such evidence is
offered at trial.

The line between proper and improper expert opinions may be difficult to determine

in some matters and not all expert testimony regarding legal issues are excluded. Specht v.

' Defendant does not challenge Mr. Ziegler’s qualifications.

4

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Jensen, 853 F.2d 805, 809 (10" Cir. 1988).

Those cases demonstrate that an expert’s testimony is proper under Rule 702 if

the expert does not attempt to define the legal parameters within which the

jury must exercise its fact-finding function. However, when the purpose of

testimony is to direct the jury’s understanding of the legal standards upon

which their verdict must be based, the testimony cannot be allowed. In no

instance can a witness be permitted to define the law of the case.

Specht v. Jensen, 853 F.2d at 809-10.

Mr. Ziegler’s testimony that Defendant’s subsequent changes to the loading facility
were not remedial measures is improper. The question of remedial measure admissibility is
not a matter for the jury’s consideration. The trial judge will make the determination if the
Defendant’s modifications to the loading facility and procedures qualify as subsequent
remedial measures under F.R.E. 407 and will further determine if evidence of those
modifications will be admitted during trial. Mr. Ziegler’s testimony fails the first test of
F.R.E. 702 in that it will not aid the trier of fact. Further, in that Mr. Ziegler is making a
finding that is solely within the providence of the trial judge, it is an effort by Mr. Ziegler to
define the law of the case. The Plaintiff concedes that such testimony by Mr. Ziegler would

be improper and asserts that she will not offer such testimony at trial.

Defendant’s Role in Removal of Third Rail:

The Defendant seeks to exclude Mr. Ziegler’s testimony regarding the Defendant’s
role in the removal of the third rail from the safety cage. From the information presented to
the Court, it appears that the exact circumstances of the removal of the third rail are unknown
and therefore disputed. There does not appear to be any disagreement that the third rail was
removed, but only as to Defendant’s specific role. Mr. Ziegler’s view is that Defendant

either removed or contracted to have the rail removed. Mr. Ziegler’s designation references

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discovery from Defendant that the third rail was removed to facilitate loading of railroad
cars. [Doc 18-1 2.16] [Doc 37-3 p.5-6] Mr. Ziegler also states that the missing rail was
known to Defendant for a number of years. [Doc 18-1 { 2.14] It appears that the loading
facility is the sole property of Defendant and was under their operational control at all times
and that they assert that they inspected the facility on a regular basis. In this motion the
Defendant does not assert that it was unaware of the missing rail nor does it provide any
information as to how the rail may have been removed by a third party without Defendant’s
consent.

Defendant contends that Mr. Ziegler’s expert opinion is based upon unsupported
speculation and therefore faulty. Every expert must base his opinions upon the facts of the
case and those facts are often disputed. If an expert uses assumptions which have no basis in
the facts of the case, the testimony could be rendered inadmissible under Rule 702. “While
expert opinions ‘must be based on facts which enable [the expert] to express a reasonably
accurate conclusion as opposed to conjecture or speculation, ... absolute certainty is not
required.” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir.1995) and Dodge
v. Cotter Corp., 328 F.3d 1212, 1222 (10" Cir. 2003). Mr. Ziegler’s opinions regarding
modification of the Chevron facility is not unsupported speculation, but rather based upon
reasonable grounds which will ultimately be decided by the trier of fact.

Rule 702 requires that expert opinions be based upon “sufficient facts or data”; it does

not require that such facts or data be devoid of dispute. Mr. Ziegler’s inference regarding the

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removal of the third rail is based upon the known facts and does not appear so unreasonable

or unsupported that it undermines the admissibility of his expert opinions.

Even after Daubert, rejection of expert testimony has been the exception rather
than the rule. Fed.R.Evid. 702 advisory committee's notes; Aerotech Res., Inc.
v. Dodson Aviation, Inc., No. 00-2099, 2001 WL 474296, at *2 (D.Kan. Apr.
4, 2001). See also Robinson v. Missouri Pac. R.R., 16 F.3d 1083, 1090 (10th
Cir.1994) (“Doubts about whether an expert's testimony will be useful should
generally be resolved in favor of admissibility unless there are strong factors
such as time or surprise favoring exclusions. The jury is intelligent enough ...
to ignore what is unhelpful in its deliberations.”). The gate-keeping function of
the court does not replace the traditional adversary system and the role of the
jury. Daubert, 509 U.S. at 596, 113 S.Ct. 2786. The weight and credibility of
expert testimony are for the trier of fact to determine. Jacklovich v. Simmons,
392 F.3d 420, 429 (10th Cir.2004); United States v. Varoz, 740 F.2d 772, 775
(10th Cir.1984). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert, 509
USS. at 596
Utility Trailer Sales of Kansas City, Inc. v. MAC Trailer Mfg. Inc., 267 F.R.D. 368 (Dist.

Kan. 2010).

A dispute as to the facts or proper inferences does not render the expert testimony
inadmissible. If that was the case, expert testimony would be the exception rather than the
rule. The reasonableness of the assumptions of Mr. Ziegler as to modifications of the
Defendant’s facilities do not impact its admissibility, but rather the weight such opinions will
be afforded by the trier of fact.

Lack of Documentation:

Defendant seeks to exclude Mr. Ziegler’s testimony that Defendant “withheld, hid or

destroyed relevant documents.” Neither Mr. Ziegler’s designation nor his testimony contain

any statement that Defendant withheld or destroyed relevant documents, but Defendant

believes his testimony could infer such action on the part of Defendant. While the Court did

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not see such inference in the testimony, it is understandable that Defendant would be
concerned. When there is evidence of a party’s bad-faith or intentional destruction of
evidence, the court may give an instruction on spoliation. Henning v. Union Pacific R. Co.,
530 F.3d 1206, 1220 (10" Cir. 2008). Mere negligence does not support spoliation.
Aramburu v. Boeing, Co. 112 F.3d 1398, 1407 (10" Cir. 1997).

The Court has not been provided with any information which would support a finding
of spoliation and Plaintiff denies that it is seeking any adverse inference arising from
spoliation’. In that Mr. Ziegler has not stated that Defendant withheld or destroyed any
relevant documents, a motion to strike such testimony is premature.

The Defendant also asserts that Mr. Ziegler should not be allowed to infer that the
absence of inspection and audit records of the Glencoe Junction Terminal means that such
inspections and audits did not occur. Mr. Ziegler’s expert designation is critical of
Defendant’s lack of records and that the lack of such records implies that Defendant did not
conduct such inspections. It is well recognized that the absence of regularly maintained
records is evidence that the action did not take place. Nevertheless, such an inference will
depend on evidence that such inspections or audits were regularly recorded within the
Defendant’s records. This is a matter for the trial court to address in light of the evidence

offered at trial.

? Plaintiff does reserve the right to raise spoliation if evidence of such is discovered at a later date.

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CONCLUSION
Defendant’s motion to strike Mr. Ziegler’s testimony that Defendant’s post-event
modifications of the loading facility were not a “subsequent remedial measure” within the
meaning of Wyoming Rule of Evidence 407 is GRANTED.

Defendant’s motion to strike in all other aspects is DENIED.

77

Dated this iy day of January, 2017.
Mark L. ¢: Garman

U.S. Magistrate Judge