O'Hara v. Premcor Refining Group Inc.

Filing 156

MEMORANDUM ORDER re 124 MOTION in Limine Defendant's Motion in Limine to Exclude Expert Reports. Signed by Judge Richard G. Andrews on 10/5/2012. (ksr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

EDWARD O'HARA, JR.,
Plaintiff,
v.

Civil Action No. 09-500-RGA

THE PREMCOR REFINING GROUP,
INC.,
Defendant.
MEMORANDUM ORDER

Before the Court is Defendant's Motion in Limine to Exclude Testimony of Plaintiffs
Expert Witness, John Posusney. (D.I. 124). It is fully briefed. (D.I. 125, 128, 135).
This motion is mostly a Daubert motion. Federal Rule of Evidence 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 Court of Appeals has explained:
Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability
and fit. Qualification refers to the requirement that the witness possess specialized
expertise. We have interpreted this requirement liberally, holding that "a broad range of
knowledge, skills, and training qualify an expert." Secondly, the testimony must be
reliable; it "must be based on the 'methods and procedures of science' rather than on
'subjective belief or unsupported speculation'; the expert must have 'good grounds' for
his on her belief. In sum, Daubert holds that an inquiry into the reliability of scientific
evidence under Rule 702 requires a determination as to its scientific validity." Finally,
Rule 702 requires that the expert testimony must fit the issues in the case. In other words,
the expert's testimony must be relevant for the purposes of the case and must assist the
trier of fact. The Supreme Court explained in Daubert that "Rule 702's 'helpfulness'
standard requires a valid scientific connection to the pertinent inquiry as a precondition to

admissibility."
By means of a so-called "Daubert hearing," the district court acts as a gatekeeper,
preventing opinion testimony that does not meet the requirements of qualification,
reliability and fit from reaching the jury. See Daubert ("Faced with a proffer of expert
scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule
104(a) [of the Federal Rules of Evidence] whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to understand or determine a fact
in issue.").

Schneider ex rel. Estate ofSchneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003). Based on
the record before the Court, the Court concludes that John Posusney has specialized expertise as
an engineer. The main comment on his expertise is that he does not have refinery experience.
(D.I. 125, at 7). His opinions do not appear to be specific to refineries. He certainly has
engineering expertise. The lack of refinery experience appears to be immaterial. The more
pertinent arguments deal with the "reliability" and "fit."
I should first note that I have been supplied with Mr. Posusney's expert report. (D.I. 1255). Much of it, if offered as testimony, is clearly inadmissible, as it simply consists of recitations
of narrative reports and deposition testimony. Other portions, while perhaps not clearly
inadmissible, should nevertheless be excluded as not being of assistance to the trier of fact.
Thus, for example, Mr. Posusney will not be permitted to testify about how the accident
occurred, what Premcor employees "knew or should have known," or whether Premcor showed
"reckless indifference." 1
Nevertheless, there is potential that Mr. Posusney has expert testimony on matters that
would help the jury and would fit the facts of this case. From reviewing his report, the potential

1

The Plaintiff agrees the "reckless indifference" testimony is inadmissible. What the
Defendant "knew or should have known" is a factual question on which I do not believe Mr.
Posusney' s opinion would be helpful. I am doubtful that he has any particular expertise to offer
on that topic.

areas are: (1) whether the regulations, codes, and/or standards of OSHA, ASTM (the American
Society for Testing and Materials), and/or the BOCA (Building Officials and Code
Administrators) set forth a standard of care that Premcor needed to meet; and (2) whether the
manhole cover that was covering the opening into which the Plaintiff fell complied with any
regulations, codes, and/or standards determined to be applicable.
The difficulty with Mr. Posusney's testimony is that his expertise is technical, but the
disputed issues are mostly legal - do the regulations, codes, or standards apply to the facts of this
case? Defendant argues that the OSHA standards do not apply because (1) the cited portions
apply to an "employer" and that was Griffith Roofing, not the Defendant; (2) the cited portions
only apply during the workday; and (3) the cited portions do not apply because of an exception
for manhole covers used on streets or roadways. Defendant argues that Mr. Posusney does not
(and, at deposition, could not) explain the basis for his opinion that the ASTM Standard Practice
for Safe Walking Surfaces was violated. Defendant argues that BOCA does not apply because
there is no evidence that BOCA applies to Delaware City.
In regard to these five arguments, I reach the following conclusions: (1) I need further
briefing on whether the Defendant is an "employer" within the meaning of the OSHA
regulations; (2) I believe the "only applies during the workday" argument is without merit, as it
appears clear to me that the limitation is that the regulation applies once a construction project
begins until the project ends; (3) the papers do not make clear to me whether the manhole was on
a street or roadway, and there does not appear to be any authority on the public/private
distinction; (4) the papers do not make clear to me whether the ASTM testimony would be
admissible; and (5) unless there is a showing that the BOCA standards apply to Delaware City,
the testimony will not be admitted.

In order to reach an appropriate decision on the issues, I have set a schedule for further
briefing on points (1) and (3) (the issue in regard to this being whether there is any legal authority
for a distinction between private and public roadways), and will require testimony outside the
presence of the jury on points (3) (the issue in regard to this being whether the scene was a street
or roadway), (4), and (5).

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h._,

October
2012
Wilmington, Delaware