Rowan v. Sunflower Electric Power Corporation, et al.
MEMORANDUM AND ORDER granting in part and denying in part 450 the Utilities' Motion to Strike Plaintiff's Expert. Signed by District Judge John W. Lungstrum on 06/22/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Case No. 15-9227-JWL
Sunflower Electric Power Corporation and
Mid-Kansas Electric Company, LLC;
MEMORANDUM & ORDER
On August 29, 2013, plaintiff sustained electrical injuries when he was installing a guard
structure under an overhead power transmission line during a utility line construction project
near Medicine Lodge, Kansas.
At the time of his injury, plaintiff was employed by and
performing work for his employer, Track Utilities, LLC (“Track”). Plaintiff asserts negligence
claims against the owner of the transmission line, Mid-Kansas Electric Company, LLC, and the
operator of the transmission line, Sunflower Electric Power Corporation.
initially asserted negligence claims against the contractor responsible for the utility line
construction project, Power Constructors, Inc. (“Power”), the court recently granted Power’s
motion for summary judgment after concluding that plaintiff’s claims against Power were barred
by the exclusive remedy provision of the Kansas Workers’ Compensation Act.
This matter is now before the court on the Utilities’ motion to strike plaintiff’s expert,
Donald R. Johnson. Mr. Johnson is a licensed electrical engineer with more than thirty-five
years of experience in the field of electric power distribution, including the construction and
design of electric utility systems and overhead electric transmission line construction. Mr.
Johnson is a member of the Institute of Electric and Electronic Engineers (IEEE) and is
knowledgeable about National Electronic Safety Code (“NESC”) compliance. Plaintiff intends
to call Mr. Johnson as a witness at trial primarily to establish the duty of care and to prove the
breach of that duty by the Utilities. In resolving the Utilities’ motion to exclude, the court
assumes familiarity with the court’s memorandum and order resolving the parties’ motions for
summary judgment and the parties’ factual showing on summary judgment.
As will be
explained, the motion is granted in part and denied in part.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme
Court instructed that district courts are to perform a “gatekeeping” role concerning the
admission of expert testimony. See id. at 589–93; see also Kumho Tire Co. Ltd. v. Carmichael,
526 U.S. 137, 147–48 (1999). The admissibility of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence, which states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of
Fed. R. Evid. 702.
In order to determine that an expert’s opinions are admissible, this court must undertake a
two-part analysis: first, the court must determine that the witness is qualified by “knowledge,
skill, experience, training, or education” to render the opinions; and second, the court must
determine whether the witness’s opinions are “reliable” under the principles set forth in Daubert
and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.
2001). The rejection of expert testimony is the exception rather than the rule. See Fed. R. Evid.
702 advisory committee notes. Under Rule 702, “[t]he proponent of expert testimony bears the
burden of showing” that its proposed expert satisfies these requirements, and district courts have
considerable latitude in determining whether the proponent has satisfied this burden. See Heer
v. Costco Wholesale Corp., 589 Fed. Appx. 854, 861 (10th Cir. 2014) (quoting United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); Kumho Tire, 526 U.S. at 152).
Applicable NESC Standards
The parties in this case agree that the Utilities were required to conform to the standards
set forth in the National Electrical Safety Code (NESC). Relying on a Kansas Administrative
Regulation, plaintiff contends that the Utilities were required to follow the 1997 edition of the
NESC. See K.A.R. § 82-12-2 (2009). The Utilities, in turn, contend that federal regulations
require them to follow the most recent edition of the NESC, which is the 2012 edition. See 7
C.F.R. § 1724.50. The parties agree that, for purposes of this case, there are no substantive
differences between the two editions of the NESC.
Despite the fact that no meaningful distinction exists between the 1997 and 2012 editions
of the NESC, Mr. Johnson repeatedly criticizes the Utilities in his report based on the Utilities’
failure to “study” the 1997 edition; failure to maintain a copy of the 1997 edition in the offices
of management personnel; failure to “look” at the 1997 edition; and failure to consider the 1997
edition to be applicable to the project. Mr. Johnson concludes that the Utilities had a “cavalier”
attitude about the 1997 edition and ignored it at all times. The Utilities move to preclude Mr.
Johnson from telling the jury that the 1997 edition of the NESC applies to this case and from
suggesting to the jury that negligence can be found based solely on the Utilities’ failure to
adhere to the 1997 edition. The motion is granted.
In light of the parties’ agreement that there is no meaningful distinction between the two
editions of the NESC, the court need not decide whether one edition applies over the other
edition. Because there is no substantive difference, and because Mr. Johnson agrees that it is
common practice in the industry for utilities to follow the most recent (2012) edition of the
NESC, Mr. Johnson may not tell the jury that the Utilities’ failure to adhere to the 1997 edition
is pertinent in any respect. He is free to rely on the 1997 edition in connection with explaining
to the jury the applicable standard of care or a particular safety requirement, but he may not
suggest to the jury that the 1997 edition (as opposed to the 2012 edition) necessarily governs the
Utilities or that the Utilities departed from the applicable standard of care based solely on their
failure to adhere to the 1997 edition.
Whether the Utilities Knew that Track was Working Under an Energized Line
In Opinion B of his report, Mr. Johnson opines that the Utilities knew that Track was
building guard structures under an energized line. The Utilities move to exclude this opinion on
the grounds that it is based solely on the deposition testimony of Randall Miller, a Track
employee, and is contradicted by other evidence in the record reflecting that the Utilities
expected that the guard structures would be built after the scheduled outage. This opinion is
excluded but not because it is contradicted by other evidence in the record. Rather, Mr.
Johnson’s opinion amounts to no more than his personal belief as to the weight of the evidence
through which he resolves a factual dispute that the jury is fully qualified to resolve on its own.
As such, the opinion does not assist the jury in any respect.
Failure to Utilize Protective Settings
In Opinion C of his report, Mr. Johnson opines about the Utilities’ failure to place the
transmission line’s recloser (or circuit breaker) in its “one shot” mode. The evidence suggests
that when placed in this mode, the recloser would not automatically reset and would remain
open once the fault current reached the recloser’s trip threshold. In the open position, electricity
would not flow through the lines. In simplest terms, then, the “one shot” mode is a protective
setting that causes a transmission line to de-energize upon contact and remain de-energized for
purposes of any subsequent contact with the line. In a related vein, Mr. Johnson asserts that the
Utilities should have designed the transmission system such that the system protection “relay”
settings and/or grounding of the transmission line were compliant with the NESC. Mr. Johnson
asserts that compliant relay settings and/or grounding of the line would have ensured that the
line was de-energized promptly once the initial contact was made. According to Mr. Johnson,
had the Utilities followed these precautions, plaintiff would not have sustained a “second
electrical experience” when the electrified pole swung around and hit plaintiff on the head.
The Utilities move to exclude the entirety of Mr. Johnson’s Opinion C. With respect to
Mr. Johnson’s testimony about placing the recloser in one-shot mode, the Utilities contend that
the opinion is unreliable because Mr. Johnson has ignored plaintiff’s and Track’s negligence and
their failure to follow pertinent safety regulations and has ignored that the Utilities’ safety
manual requires the use of a one-shot setting only when contractors will approach within 10 feet
of an energized line, which was not anticipated in this case. These challenges do not undermine
the admissibility of Mr. Johnson’s testimony or the basis for his opinion. Rather, they merely go
to the weight of Mr. Johnson’s testimony and can be explored on cross-examination. The
Utilities contend that Mr. Johnson’s opinion about the allegedly noncompliant or inadequate
relay settings and/or grounding of the transmission line is unreliable because he did not calculate
the “minimum clearance requirement under the NESC,” he performed no “fault modeling” of
the incident and he never tested the ground resistance at the incident site. But that sentence
captures the whole of the Utilities’ argument—they fail to explain how these asserted failures
affect the reliability of Mr. Johnson’s opinion. Moreover, Mr. Johnson notes in his report that
such testing would have been futile because the site conditions had significantly changed from
the time of the incident. This argument, then, is rejected.
The Utilities also move to exclude Mr. Johnson’s opinions about the use of protective
settings on the grounds that those opinions are irrelevant because plaintiff only had one contact
with the energized pole and, contrary to Mr. Johnson’s report, did not have a “second electrical
experience.” This aspect of the Utilities’ motion is granted in part and denied in part. It is
granted to the extent that Mr. Johnson may not tell the jury that plaintiff received a second
electrical shock when he was struck in the head by the pole. He is not qualified in any respect to
offer that opinion, which is based solely on the testimony of Randall Miller, a Track employee,
who testified simply that the pole was still energized when it hit plaintiff in the head. As noted
earlier, Mr. Johnson may not offer his personal belief as to the weight of any particular evidence
as such testimony does not assist the jury. Mr. Johnson, however, may testify as to whether a
one-shot setting would have precluded a second electrical experience to the extent the jury
concludes that a second electrical experience occurred.1
Finally, in the context of his Opinion C, Mr. Johnson states that “the extremely high
electric currents, through both Mr. Rowan and Mr. Holt, were likely in the range of nearly 120
amps.” The Utilities move to exclude any opinion that Mr. Johnson seeks to offer as to the
amount of current that plaintiff allegedly received on the grounds that Mr. Johnson has no valid
basis for that opinion. In response, plaintiff asserts that Mr. Johnson clarified in his deposition
that the 120 amp figure “was the level at which the circuit breaker protection device would have
tripped.” Plaintiff further asserts that pinpointing the amount of amperage that plaintiff received
is not relevant to any issues in the case and is likely impossible in any event. The court, then,
grants this aspect of the Utilities’ motion as unopposed by plaintiff.2
The court does not construe Mr. Johnson’s report as offering an opinion that plaintiff’s initial
contact with the energized pole would have been less if the Utilities had utilized the protective
settings described in Opinion C.
In their reply brief, the Utilities offer an additional reason why Mr. Johnson’s opinion as to
relay settings should be excluded—because there was no protective setting that the Utilities
could utilize without substantially disrupting service to customers. The court declines to address
this argument. Lynch v. Barrett, 703 F.3d 1153, 1160 n.2 (10th Cir. 2013) (court does not
consider arguments raised for the first time in reply brief).
Whether the Utilities’ Conduct was Reckless
In Opinion E of his report, Mr. Johnson opines that the conduct of the Utilities was
reckless and constituted an extreme departure from the applicable standard of care. At other
points in his report, he reiterates his opinion that the Utilities were “reckless” with respect to the
NESC and “grossly” violated both the NESC and their own safety manual. Report at 13, 22, 25,
43-45, 47. The Utilities move to exclude this opinion and to preclude Mr. Johnson from using
such terms in his testimony at trial. The motion is granted. By opining that the Utilities were
reckless and grossly negligent, Mr. Johnson is telling the jury what legal conclusion they should
draw from the facts presented to them. See Garcia v. Estate v. Arribas, 2005 WL 6011256, at
*3 (D. Kan. 2005) (excluding expert testimony that doctor’s performance was grossly negligent
or reckless). While Rule 704(a) allows expert testimony to embrace an “ultimate issue,” there
are “limits to this otherwise liberal evidentiary rule.” See id. (citing Okland Oil Co. v. Conoco
Inc., 144 F.3d 1308, 1328 (10th Cir. 1998) (an expert may not state his or her opinion as to legal
standards nor may he or she state legal conclusions drawn by applying the law to the facts)).
Moreover, to the extent Mr. Johnson’s opinion is intended to convey the Utilities’ state of mind,
he is no more qualified than the members of the jury to opine on that issue. See id.
Plaintiff asserts that Holt v. Wesley Medical Center, LLC, 2004 WL 1636571 (D. Kan.
2004) permits his expert to testify that the Utilities acted recklessly. It does not. The Daubert
motion in Holt only challenged the experts’ qualifications to testify as to the standard of nursing
care on an obstetrical nursing unit and the experts’ opinions on understaffing. Id. at *5-6. The
court denied those motions. Id. at *5-6. The court’s reference to the expert’s testimony as it
related to wanton conduct was made in connection with ruling on the defendants’ motion for
summary judgment on punitive damages. Id. at *10-11. While the court concluded that the
expert’s testimony was sufficient to create a factual issue on whether defendants acted in a
wanton manner, the issue of whether the expert could offer testimony at trial concerning
reckless conduct was not before the court.
For the foregoing reason, Mr. Johnson will not be permitted to tell the jury that the
Utilities acted recklessly or that the Utilities’ conduct was a “gross” departure from the standard
Medical and Vocational Opinions
In his Opinions H and L of his report, Mr. Johnson asserts that plaintiff “will never be
able to safely and properly perform the tasks required of an apprentice lineman, journeyman
lineman, or foreman;” that plaintiff “most likely would have reached his goals of becoming a
journeyman foreman had he not been injured;” and that plaintiff should “cease working as a
residential electrician as soon as possible” because he “poses a risk of injury to himself and
others.” Report at 88, 90. The Utilities assert that Mr. Johnson, an electrical engineer, is not
qualified in any respect to offer opinions about plaintiff’s medical condition or vocational
abilities. Plaintiff, in response, asserts that Mr. Johnson is “keenly familiar” with the electrical
industry and his opinions are limited to “safety and what is required to be a qualified lineman
under the NESC and a residential electrician under the NEC.”
The court rejects plaintiff’s argument and his assertion that Mr. Johnson’s opinions are
strictly limited to safety issues.
Mr. Johnson broadly opines that plaintiff is “physically
disabled” and has “problems with concentration, focus and memory.” Mr. Johnson has no
medical training, he has not conducted a medical examination of plaintiff and he has not
reviewed plaintiff’s medical records. His opinion is not based on any objective medical findings
in the record. Plaintiff, then, has not satisfied his burden of establishing that Mr. Johnson is
qualified to offer opinions about plaintiff’s physical or mental capabilities and, more
importantly, how those capabilities match the particular occupations that, according to Mr.
Johnson, plaintiff cannot perform. His opinion regarding plaintiff’s career path had plaintiff not
been injured is based solely on plaintiff’s testimony concerning his career goals and the
testimony of witnesses who described plaintiff as a “hard worker who followed instructions”
prior to his injury. His opinion, then, is conclusory and speculative. Plaintiff, then, has not met
his burden of showing that Mr. Johnson is qualified to testify about plaintiff’s projected career
Whether the Truck was Properly Grounded
In Opinion J of his report, Mr. Johnson asserts that the truck that Track was utilizing on
the work site on the day of the incident was properly grounded. His opinion is based on the
testimony of Randall Miller, a Track employee, and photos from the work site. The Utilities
move to exclude this opinion because it contradicts the testimony of eye witnesses who testified
that the truck was not grounded and the results of an OSGA investigation. The Utilities also
move to exclude this opinion because Mr. Johnson conducted no analysis or measurements of
the potential paths to ground, the resistance or path through the vehicle, or whether current
would have been directed at the metal chain suspending the wooden pole. The motion is denied.
The court has reviewed the pertinent deposition excerpts relied upon by the parties and it is clear
that Mr. Johnson has an adequate basis to provide his opinion about the grounding of the truck,
including whether the steel outriggers and steel cleats on the tracks of the truck provided
sufficient grounding regardless of whether the truck was otherwise grounded with a driven rod.
The points raised by the Utilities may be explored through cross-examination at trial.
Allocation of Fault
In Opinion K of his report, Mr. Johnson asserts that the Utilities and Power “bear 100%
of the responsibility for the electric current and electric shock/burns that entered Mr. Rowan’s
body;” that Power’s and the Utilities’ termination of Track without cause is “tantamount in the
industry to a concession that Track was without fault;” and that “there are no protective (rubber)
gloves on the market . . . that would have prevented the electric current from entering Mr.
Rowan’s body or the electric shock/burns he received.” The Utilities move to exclude these
opinions. The court will exclude Mr. Johnson’s opinion as to the specific percentage of fault
that the Utilities should bear in this case. See Donathan v. Orthopaedic & Sports Medicine
Clinic, PLLC, 2009 WL 3584263, at *1 (E.D. Tenn. Oct. 26, 2009) (expert witnesses are barred
from opining as to the percentage of fault of the parties, but may testify as to the responsibilities
of each of the various parties).
Mr. Johnson’s opinion concerning the significance of the Utilities’ decision to terminate
Track without cause is excluded because plaintiff has not demonstrated that Mr. Johnson is
qualified to render that opinion. Plaintiff asserts that Mr. Johnson is entitled to explain, based
on his industry knowledge and experience, the choice that contractors have “between
terminating subcontractors for cause and for convenience, particularly that Power had the option
to terminate Track for cause, and with Sunflower’s consent, chose not to do so.” But plaintiff
directs the court to no evidence suggesting that Mr. Johnson’s significant experience as an
electrical engineer includes any experience or knowledge concerning the contractual dynamics
between and among utilities, general contractors and subcontractors.
The motion is denied with respect to Mr. Johnson’s opinion as to the availability and
efficacy of protective rubber gloves. In support of their motion to exclude, the Utilities assert
that Mr. Johnson “used the wrong voltage and made no effort to ascertain the actual amperage;”
that Mr. Johnson ignores that the NESC and OSHA required plaintiff to wear protective gloves;
and that “Class 2 electrical gloves” would have prevented plaintiff’s injuries because they would
have insulated against the “low level of shock he received.” Mr. Johnson’s deposition testimony
reflects that he has an adequate factual basis to render his opinion that protective gloves would
not have prevented plaintiff’s injuries. The Utilities’ arguments bear only on the weight of the
opinion offered by Mr. Johnson and not the admissibility of that opinion. The Utilities, then, are
free to inquire about the alleged deficiencies in Mr. Johnson’s opinion on cross-examination, but
the court will not exclude that opinion.
The Utilities argue that Mr. Johnson’s testimony should be excluded because he “cherry
picked” facts that support his opinions while ignoring facts that are less favorable to plaintiff.
The only specific example of “cherry-picking” offered by the Utilities is Mr. Johnson’s opinion
(Opinion D) that a reasonable and prudent utility would have de-energized the line prior to
plaintiff working in close proximity to the line. According to the Utilities, Mr. Johnson ignores
that guard structures can be built safely under energized lines and that Track, and plaintiff, had
done so in the past. The Utilities, however, do not suggest that Mr. Johnson willfully ignored
some piece of undisputed evidence that directly contradicts his opinion. This argument, then,
goes merely to the weight of Mr. Johnson’s opinion and is proper fodder for cross-examination
but is not a basis to exclude Mr. Johnson’s testimony.3
The Utilities incorporate by reference—without elaboration—certain arguments set forth
in Power’s motion to exclude.
Specifically, the Utilities incorporate Power’s argument
concerning “the incompetence of the Track crew and Sunflower’s knowledge thereof” and the
claim “that the incident was totally preventable.” But the portions of Power’s motion that the
Utilities incorporate are directed solely to opinions (Opinions F and G) that Mr. Johnson made
concerning only Power’s conduct. Mr. Johnson, for example, opines that Power should not have
retained the lowest bidder on the project and that plaintiff would not have been injured but for
Power’s conduct. The Utilities did not bother to direct the court to any particular pages in Mr.
Johnson’s 91-page report in which he renders the same or similar opinions with respect to the
Utilities. The court has located similar opinions with respect to the Utilities on pages of 48 and
51 of Mr. Johnson’s report. But those opinions are included within Mr. Johnson’s Opinion E as
the basis for his opinion that the Utilities acted recklessly. Because the court has already ruled
that Mr. Johnson cannot offer that opinion at trial, there is no reason for Mr. Johnson to explain
to the jury the basis for his opinion that the Utilities acted recklessly. To the extent Mr. Johnson
In their reply brief, the Utilities assert for the first time that Mr. Johnson’s opinion that the
Utilities should have de-energized the line is unreliable because it ignores the fact that the
Utilities had no authority to unilaterally de-energize the line. The court declines to address this
argument. Lynch v. Barrett, 703 F.3d 1153, 1160 n.2 (10th Cir. 2013) (court does not consider
arguments raised for the first time in reply brief).
has offered those opinions for some other reason not identified by the Utilities in their motion,
the court cannot resolve that issue in the absence of any substantive briefing from the Utilities.
The Utilities challenge one statement made on page 12 of Mr. Johnson’s report in which
Mr. Johnson asserts that plaintiff’s injuries were caused by the high voltage electric current
flowing through the Utilities’ transmission line.
The Utilities assert that this “causation
opinion” must be excluded as unreliable because Mr. Johnson has failed to rule out other
“obvious” causes of plaintiff’s injuries, including Track’s failure to properly ground the truck;
Track’s failure to cut the wooden pole to a length that would not reach the height of the
overhead line when erected; Track’s failure to properly rig the pole; and plaintiff’s loss of
footing while maneuvering the pole. This argument is rejected. Mr. Johnson’s statement is not
an opinion—he merely recognizes that plaintiff’s injuries, quite obviously, resulted from the
electric current in the transmission line. The Utilities cannot reasonably dispute that statement.
In his statement, Mr. Johnson does not purport to identify any negligent act or omission of any
party and he does not opine on any issues relating to proximate cause or comparative fault. The
Utilities’ argument, then, misses the mark entirely.
Throughout his report, Mr. Johnson refers to the fact that the overhead transmission line
The Utilities seem to construe these references as an opinion that a
reasonable utility would have insulated the line. The court does not construe Mr. Johnson’s
report to contain that opinion and plaintiff confirms as much in his response. According to
plaintiff, the fact that the transmission line was uninsulated simply means that a higher degree of
care was required on the part of the Utilities. Plaintiff’s response indicates that Mr. Johnson will
not opine that the Utilities should have insulated the line. This argument, then, is rejected.
Finally, the Utilities also make a “catch all” argument that Mr. Johnson’s opinions are
more prejudicial than probative and should be excluded under Rule 403. That argument is
IT IS THEREFORE ORDERED BY THE COURT THAT the Utilities’ motion to
strike plaintiff’s expert (doc. 450) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 22nd day of June, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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