Fielder v. R.V. Coleman Trucking, Inc. et al

Filing 262

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE TO EXCLUDE SUBSEQUENT REMEDIAL MEASURES AND INAPPLICABLE REGULATIONS. Motion in Limine to Exclude Evidence of Inapplicable Regulations and Standards filed by MEC Construction, LLC ECF No. [152 ] is GRANTED in part and DEFERRED in part, and the Motion in Limine to Exclude Evidence of Subsequent Remedial Measures filed by MEC Construction, LLC ECF No. 154 is GRANTED. Signed by Senior Judge Frederick P. Stamp, Jr on 3/19/2018. (copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON FIELDER,
Plaintiff,
v.

Civil Action No. 1:16CV23
(STAMP)

R.V. COLEMAN TRUCKING, INC.,
ARKOS FIELD SERVICES, LP,
EQT CORPORATION,
EQUITRANS, LP d/b/a EQT MIDSTREAM
and EQT PRODUCTION COMPANY,
Defendants,
and
R.V. COLEMAN TRUCKING, INC.,
Third-Party Plaintiff,
v.
MEC CONSTRUCTION, LLC,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
REGARDING MOTIONS IN LIMINE TO EXCLUDE SUBSEQUENT
REMEDIAL MEASURES AND INAPPLICABLE REGULATIONS
Pending before this Court are two motions in limine filed by
third-party defendant MEC Construction, LLC (“MEC”).

The trial of

this civil action1 is scheduled to commence on March 20, 2018.
By previous memorandum opinion and order (ECF No. 233), this
Court deferred ruling on the Motion in Limine to Exclude Evidence
of

Inapplicable
1

Regulations

and

Standards

filed

by

MEC

For a more thorough background of this civil action, see ECF
No. 207.

Construction, LLC (ECF No. 152), and deferred ruling on the Motion
in Limine to Exclude Evidence of Subsequent Remedial Measures filed
by MEC Construction, LLC (ECF No. 154).

Following the initial

pretrial conference in this civil action, this Court entered an
order directing the parties to submit briefs as to the issues
raised during the pretrial conference.

ECF No. 192.

Accordingly,

the parties filed supplemental briefs addressing, among other
things, the applicability of regulations in the instant matter as
a question of law for the Court to decide or as a question of fact
to be submitted to the jury by and through competing expert
testimony and jury instruction.
Following the pretrial conference, this Court also entered an
order granting the emergency motion to continue trial of defendant
and

third-party

plaintiff

R.V.

Coleman

Trucking,

Inc.

(“R.V.

Coleman”) (ECF No. 209) and ordered the trial be continued to March
20, 2018.

ECF No. 210.

Additionally, this Court ordered that a

supplemental pretrial conference/final settlement conference be
held on March 12, 2018 at 10:00 a.m.
During

this

time,

but

before

the

supplemental

pretrial

conference, the parties informed the Court that a settlement had
been reached between the plaintiff and the defendants.

However,

the parties represented that the defendants were unable to reach an
agreement as to apportionment of fault, and intend to go forward
with the jury trial on the issue of allocation of liability among

2

the remaining above-named defendants. The defendant parties stated
and agree that there are no contested issues of damages.

The

parties represented that the settlement impacted the parties’
proposed supplemental pretrial order (ECF No. 235), which was
submitted on March 5, 2018 and the Court then entered an order
confirming

the

pronounced

order

of

the

Court

following

the

supplemental pretrial conference which stated the remaining issues
not resolved by the settlement as clarified by the remaining
parties (ECF No. 238).
Specifically, this Court inquired as to whether or not the
applicability of regulations in the instant matter is still a
contested issue among the defendants.
the

remaining

parties,

this

Court

Following the response of
noted

that

the

issue

of

applicability of regulations as raised in MEC’s motion in limine to
exclude evidence of inapplicable regulations and standards (ECF No.
152) and the supplemental memoranda submitted by the parties, is
still pending.

Also, this Court inquired as to whether or not

subsequent remedial measures are still a contested issue among the
defendants.

Following the response of the remaining parties, this

Court noted that the issue of subsequent remedial measures as
raised in MEC’s motion in limine to exclude evidence of subsequent
remedial measures (ECF No. 154) is contested and still pending.
Now before the Court are two pending motions in limine which
have been fully briefed: (1) Motion in Limine to Exclude Evidence

3

of

Inapplicable

Regulations

and

Standards

filed

by

MEC

Construction, LLC (ECF No. 152) and (2) Motion in Limine to Exclude
Evidence of Subsequent Remedial Measures filed by MEC Construction,
LLC (ECF No. 154).
This Court has reviewed the fully briefed motions and the
memoranda and exhibits submitted by the parties.

This Court will

address those motions in limine and set forth its findings, as
discussed below.
1.

Inapplicable Regulations and Standards
Third-party defendant MEC Construction, LLC filed a motion in

limine

to

exclude

evidence

of

inapplicable

regulations

and

standards (ECF No. 152), and cites to several regulations and
standards which it argues are inapplicable to the work performed
by MEC.
R.V. Coleman filed a response in opposition (ECF No. 158) and
argues that MEC’s motion should be denied because the mere fact
that the parties disagree as to the applicability of regulations/
standards

in

a

deliberate

intent

action

exclusion of said regulations/standards.

is

not

grounds

for

R.V. Coleman states that

pursuant to Johnson v. Brayman Const. Corp., No. 13-0598, 2014 WL
1272534 (W. Va. Mar. 28, 2014), when there is a disagreement among
the parties as to the applicability of regulations in a deliberate
intent action, the proper course of action is to permit the jury to
hear expert testimony from both sides on the topic.

4

ECF No. 158.

Plaintiff filed a response in opposition (ECF No. 166) and
states

that

to

the

extent

that

any

of

the

statutes,

rules,

regulations, or standards cited by plaintiff and/or R.V. Coleman
satisfy, or could arguably satisfy, the above criteria relevant to
this case, those standards are relevant and must be admitted into
evidence.

ECF No. 166.

Further, plaintiff argues in accordance

with Johnson v. Brayman, that “experts [are] permitted to testify
to their respective opinions about the applicability of certain
regulations to the workplace at issue.”
contends

that

the

fact

that

there

ECF No. 166.
is

Plaintiff

disagreement

to

the

applicability of certain statutes, rules, regulations, or standards
does not support the exclusion of the regulations; rather, it
invites expert testimony thereupon.

Id.

Plaintiff adds that to

the extent that this Court finds, as a matter of law, that any of
the statutes, rules, regulations, or standards cited by the experts
for

plaintiff

criteria,

then

and/or
the

R.V.

Coleman

plaintiff

does

do

not

not

satisfy

disagree

the

above

that

those

particular provisions would not be relevant to the deliberate
intent claims against defendant MEC, but may, however, be relevant
for another purpose or against another party.

Id.

This Court entered an order (ECF No. 192) following the
pretrial conference in this civil action, directing the parties to
submit supplemental briefs, in part, as to the applicability of
regulations in the instant matter as a question of law for the

5

Court to decide or as a question of fact to be submitted to the
jury

by

and

through

competing

expert

testimony

and

jury

instruction.
In the supplemental memorandum, plaintiff2 asserts that the
West Virginia Supreme Court of Appeals handles expert testimony
regarding state or federal safety statutes and regulations for the
purposes of establishing the third prong of the deliberate intent
standard in a different manner than the United States Court of
Appeals for the Fourth Circuit handles expert testimony regarding
regulations generally. Therefore, “the testimony should be handled
differently depending upon the purpose for which it is being
offered.”

ECF No. 220 at 2.

Plaintiff asserts “[t]o the extent

that any of the statutes, rules, regulations, or standards cited by
Plaintiff and/or RV Coleman satisfy, or could arguably satisfy, the
above criteria relevant to this case, those standards are relevant
and should be admitted into evidence.”

ECF No. 220 at 3-4.

Further, plaintiff states that “in accordance with Johnson v.
Brayman, [] the West Virginia Supreme Court of Appeals has held
that ‘experts [are] permitted to testify to their respective
opinions about the applicability of certain regulations to the
workplace at issue’.” Id. Plaintiff notes that the Fourth Circuit

2

This Court notes that plaintiff is no longer a party to this
civil action following the settlement agreement reached by the
parties.
However, this Court has considered the arguments and
legal authority advanced by the plaintiff in his supplemental brief
in its consideration of this issue.
6

has held that “the jury must be instructed on the law by the court
and not by the witnesses” and that an expert should not be
permitted “to give opinions on what the law means or how it is
interpreted.”

Id.

Plaintiff contends that “[w]hile the Court is

required to tell the jury what the law is, experts may testify as
to

whether

regulations.”

certain

transactions

Id. at 5.

or

actions

comply

with

Therefore, plaintiff argues, “while the

parties’ experts may not tell the jury what the Federal Motor
Carrier Safety Regulations mean, they should be permitted to
testify whether certain conduct or load securement practices comply
with the regulations as explained by the Court.”

Id.

Plaintiff

adds, “[u]nder no circumstances, however, should an expert be
permitted to tell a jury that the law says something that it does
not, or that the law does not apply when it does – that is the
province of the Court.”

Id.

Defendant and third-party plaintiff R.V. Coleman filed a
memorandum of law regarding the applicability of regulations (ECF
No. 224) and asserts that “[i]n a deliberate intent action, the
question of whether a specific statute, rule, regulation, or
industry standard is applicable to the accident at issue and has
been violated is a question of fact to be determined by the jury.”
ECF No. 224 at 2. Thus, pursuant to the deliberate intent statute,
in a jury trial, R.V. Coleman argues that the trier of fact
determines whether there was a violation of a statute, rule,

7

regulation, or industry standard and whether or not the statute,
rule, regulation, or standard was specifically applicable to the
particular work and working condition involved.

Id.

R.V. Coleman

states that in the case of Johnson v. Brayman, the West Virginia
Supreme Court found that where there is competing expert testimony
regarding the applicability of statutes, rules, regulations, or
standards, the Court should let the experts testify to their
Id. at 3.

respective opinions and submit the issue to the jury.

Accordingly, R.V. Coleman submits that the question of whether a
specific

statute,

rule,

regulation,

or

industry

standard

is

applicable to the accident at issue and has been violated is a
question of fact to be determined by the jury.

Id.

Therefore,

R.V. Coleman argues that “the Court should instruct the jury as to
all statutes, rules, regulations, or industry standards the parties
assert are applicable to the accident at issue.”

Id. at 6.

Third-party defendant MEC filed a memorandum of law regarding
the application of regulations in this matter (ECF No. 230) and
asserts “[t]he 2005 version of the deliberate intent statute, i.e.
the

version

controlling

this

case,

is

silent

as

to

how

the

determination is to be made regarding the applicability of safety
statutes, rules, regulations, or commonly accepted and well-known
safety standards.”

ECF No. 230 at 5.

However, MEC adds, in the

2015 amendment to the deliberate intent statute, West Virginia Code
§

23-4-2(d)(2)(iii)(II)(c)(2015),

8

the

Legislature

cured

this

omission, including the following language into the statute:

“The

applicability of any such state or federal safety statute, rule or
regulation is a matter of law for judicial determination.”

Id.

MEC adds that “[t]his is further discussed in the notes pertaining
to the West Virginia Pattern Jury Instructions § 702.” ECF No. 230
at 5.

MEC contends that plaintiff’s arguments are misplaced and

that Bammerlin v. Navistar Int’l. Transp. Corp., 30 F.3d 898, 900
(7th Cir. 1994), “is virtually identical to the scenario presented
in this case, in which experts for the plaintiff and for R.V.
Coleman have testified that MEC Construction violated certain
regulations and standards which are not even applicable to the work
being performed by MEC Construction.”

ECF No. 230 at 7.

MEC

contends that this Court should determine whether any of the
regulations and standards cited by plaintiff’s and R.V. Coleman’s
experts are applicable to MEC Construction and may serve as the
basis for establishing the following element of a deliberate intent
claim:
That the specific unsafe working condition was a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly
accepted and well-known safety standard within the
industry or business of the employer, as demonstrated by
competent evidence of written standards or guidelines
which reflect a consensus safety standard in the industry
or business, which statute, rule, regulation or standard
was specifically applicable to the particular work and
working condition involved, as contrasted with a statute,
rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions.
W. Va. Code § 23-4-2(d)(2)(ii)(C)(2005).
9

This Court finds that under the amended version of the
statute,

W.

Va.

Code

§

23-4-2(d)(2)(iii)(II)(a-c)(2015),3

the

statute, rule, or regulation: “(a) Must be specifically applicable
to the work and working condition involved as contrasted with a
statute, rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions; [and] (b) Must be
intended to address the specific hazard(s) presented by the alleged
specific unsafe working condition[.]” Further, the amended version
of the deliberate intent statute also provides that “(c) [t]he
applicability of any such state or federal safety statute, rule or
regulation is a matter of law for judicial determination.”

Id.

Thus, it is clear that the Legislature cured the previous omission
in the 2005 version of the statute by including the language of
subsection (c), and thus, removing the potential for submission of

3

(II) If the specific unsafe working condition relates to a
violation of a state or federal safety statute, rule or regulation
that statute, rule or regulation:
(a) Must be specifically applicable to the work and
working condition involved as contrasted with a statute,
rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
(b) Must be intended to address the specific hazard(s)
presented by the alleged specific unsafe working
condition; and,
(c) The applicability of any such state or federal
safety statute, rule or regulation is a matter of law for
judicial determination.
W. Va. Code § 23-4-2(d)(2)(iii)(II)(a-c)(2015)
10

such a decision to a jury.

This Court notes that the West Virginia

Supreme Court’s decision in Johnson v. Brayman, which found that
where

there

is

competing

expert

testimony

regarding

the

applicability of statutes, rules, regulations, or standards, the
Court should let the experts testify to their respective opinions
and submit the issue to the jury, is premised upon the prior
version of the deliberate intent statute as codified in the 2005
amendments to West Virginia Code § 23-4-2(d)(2).

It is well

settled, and not contested amongst the parties, that the deliberate
intent action asserted against MEC in the instant matter is
governed by West Virginia Code § 23-4-2(d)(2)(2005).4

However, to

the extent that the Legislature’s most recent amendments to the
West

Virginia

deliberate

intent

statue

clarify

that

the

applicability of any such state or federal safety statute, rule or
regulation is a matter of law for judicial determination, and do
not substantially alter change the meaning of the statute at issue,
this Court will consider the newly amended 2015 version of the
statute

at

issue

in

§ 23-4-2(d)(2)(2005).5

its

application

of

West

Virginia

Code

Specifically, this Court will consider the

4

See Kane v. Corning Glass Works, 175 W. Va. 77, 78 n.1, 331
S.E.2d 807, 808 n.1 (1984) (An employee’s deliberate intent action
is governed by the statute in effect at the time of the employee’s
injury.).
5

See United States v. Fausto, 484 U.S. 439, 453, 108 S. Ct.
668, 676–77, 98 L.Ed.2d 830 (1988) (discussing the “classic
judicial task of reconciling many laws enacted over time, and
getting them to ‘make sense’ in combination, [which] necessarily
11

2015 amendments to the deliberate intent statute for the limited
purpose of resolving the issue of whether or not the applicability
of regulations is a question of judicial determination.
The Legislature’s amendment, as it reads in the 2015 version,
expressly states that applicability of regulations is a matter of
judicial determination.

Thus, this Court declines to follow the

authority cited by R.V. Coleman, the West Virginia Supreme Court’s
unpublished memorandum decision in Johnson v. Brayman.

Rather,

this Court finds that the applicability of regulations in the
instant matter is a question of law to be decided by the Court.6
Accordingly, the regulations presented by MEC’s motion in
limine and contested by R.V. Coleman are addressed, in turn, below.
A.

29 C.F.R. § 1926.250(a)

Title 29, Code of Federal Regulations, Section 1926.250(a)(l)
provides: “All materials stored in tiers shall be stacked, racked,
blocked, interlocked, or otherwise secured to prevent sliding,
falling or collapse.”
MEC contends that the pipes that rolled off of the trailer and
injured Mr. Fielder were not stored in tiers, rather, the pipes

assumes that the implications of a statute may be altered by the
implications of a later statute”).
6

See Bammerlin v. Navistar Int’l. Transp. Corp., 30 F.3d 898,
899 (7th Cir. 1994) (holding that “[t]he meaning of federal
regulations is not a question of fact, to be resolved by the jury
after a battle of experts. It is a question of law, to be resolved
by the court.”).
12

were loaded onto a flatbed trailer for transport, not for storage,
and the regulation would not apply until the pipes were stored
after being unloaded from the truck.
agrees,

and

finds

R.V.

ECF No. 153 at 3.

Coleman’s

response

in

This Court
opposition

unpersuasive. ECF No. 158 at 4. Merriam-Webster Online Dictionary
defines the term “tier” to mean “a row, rank, or layer of articles;
especially: one of two or more rows, levels, or ranks arranged one
above another.”

Moreover, the term at issue is “tiers,” which is

clearly the plural form.

This definition shows that the term

“tiers” clearly refers to more than one row or level.

Also, even

if the term “tier” could be one row, the pipes at issue were not in
storage as they were not being stored on the truck under a common
sense view of the term.

Here, the Court finds that the regulation

does not apply to the work being performed by MEC in that the pipes
at issue were not “stored” and not in “tiers.”

Therefore, the

Court finds that this standard is not specifically applicable to
the work and working condition involved, and fails to satisfy the
requirements of the deliberate intent statute.
B.

ANSI Al0.42

American
“Safety

National

Requirements

Standard
for

(“ANSI”)
Rigging

Al0.42

concerns

Qualifications

the
and

Responsibilities” and “establishes minimum criteria of knowledge
and

performance

requirements

for

a

qualified

rigger

in

the

construction industry” with the stated purpose being “to assist in

13

achieving reasonable safety of all persons and materials during the
process of, or as the result of, rigging, lifting, or moving of
loads.”
MEC contends “[c]learly, the accident was entirely unrelated
to the rigging, lifting, or moving of loads.”

ECF No. 153 at 3.

R.V. Coleman, in response, states that “there is an abundance of
evidence in this case which demonstrates that the accident occurred
during MEC’s unloading process which included rigging, lifting, or
moving of loads.”

This Court finds, at this point, that there is

conflicting evidence as to this issue.
appropriate

to

wait

and

consider

The Court believes it is

the

testimony

and

evidence

presented at trial in order to determine what evidence there is
that shows MEC engaged in the unloading process, specifically, the
rigging, lifting, or moving of loads.

While the language of this

regulation is general in nature, at this time, this Court finds
that it is appropriate to defer its finding as to whether this
standard

is

specifically

applicable

to

the

work

and

working

condition involved, and whether or not this particular standard
satisfies the requirements of the deliberate intent statute.
C.
The

29 C.F.R. § 1926.1401, § 1926.1425(a),(b),(c), and (e)
scope

of

this

standard

“applies

to

power-operated

equipment, when used in construction, that can hoist, lower and
horizontally move a suspended load.”

29 C.F.R. § 1926.1400(a).

Further, § 1926.1425 deals with “keeping clear of the load.”

14

MEC asserts that this regulation is inapplicable in that the
“accident had nothing to do with the operation of power-operated
equipment” and adds “nothing had been moved or lifted off of the
trailer at the time of the accident.”

ECF No. 153 at 4.

R.V.

Coleman contends that “MEC was in the process of rigging the straps
of the zoom boom [forklift] to the pipe to lift the same, raising
the zoom boom to level out the straps, or actually lifting pipes
from the trailer.”

ECF 158 at 5.

While the evidence shows that an MEC foreman was using a “zoom
boom” fork lift, and MEC employees were in the process of rigging
straps to the pipes at issue, it is unclear if the forklift was
actually being used to lift or move the pipes at issue, or was
merely in the vicinity of the trailer when the accident took place.
This Court finds, at this point, that there is conflicting evidence
as to this issue.

The Court believes it is appropriate to wait and

consider the testimony and evidence presented at trial in order to
determine what evidence there is that MEC was utilizing poweroperated equipment that can hoist, lower and horizontally move a
suspended load.

At this time, this Court finds that it is

appropriate to defer its finding as to whether this standard is
specifically applicable to the work and working condition involved,
and

whether

or

not

this

particular

standard

requirements of the deliberate intent statute.

15

satisfies

the

D.

ANSI Al0.13

ANSI

Al0.13,

Safety

Requirements

for

Steel

Erection,

“establishes safety requirements for erecting, handling, fitting,
fastening, reinforcing and dismantling of structural steel, plate
steel, steel joist, and metal deck at a final in-place field site
during construction, maintenance and dismantling operations.”
MEC asserts that “[i]t is undisputed that Mr. Fielder was
injured by pipes, not by structural steel, plate steel, steel
joist, or metal deck” and adds that “[n]o such materials were even
present on the trailer from which the pipes fell” and “MEC was not
engaged in ‘steel erection’ at the subject compressor site.”
No. 153 at 4.

ECF

MEC’s expert Rob Medlock opines that the piping

being unloaded does not meet the definition of structural steel.
R.V. Coleman states in response that its expert, Stanley Pulz, a
voting member of the committee which promulgated this standard, has
opined that the job procedures being performed by MEC at the time
of the accident, with regard to unloading trucks loaded with steel
pipe, were identical to the job procedures and hazards addressed in
this standard.

ECF No. 158 at 6.

Merriam-Webster Online Dictionary defines the term “structural
steel” to mean “rolled steel in structural shapes; steel suitable
for structural shapes.”

Here, the object at issue is a pipe.

The

Court finds, at this time, that there is a dispute as to whether
the pipe at issue meets the definition of “structural steel.”

16

The

Court believes it is appropriate to wait and consider the testimony
and evidence presented at trial in order to determine what evidence
there is that the pipes at issue meet or do not meet the definition
of “structural steel.”

This Court notes that pipes are not

mentioned in the regulation and are not listed under the definition
of “steel erection” under the regulation. At this time, this Court
finds that it is appropriate to defer its finding as to whether
this standard is specifically applicable to the work and working
condition involved, and whether or not this particular standard
satisfies
E.

the

requirements

of

the

deliberate

intent

statute.

Federal Motor Carrier Safety Regulations

Federal Motor Carrier regulation 49 C.F.R. § 393.106, sets
forth the requirements for securing articles of cargo during
transport

by

a

commercial

motor

vehicle.

Specifically,

the

regulation states, in pertinent part:
(c)

Cargo placement and restraint.

(l) Articles of cargo that are likely to roll must be
restrained by chocks, wedges, a cradle or other
equivalent means to prevent rolling.
The means of
preventing rolling must not be capable of becoming
unintentionally unfastened or loose while the vehicle is
in transit.
49 C.F.R. § 393.106(c)
In its motion, MEC submits, “[w]hile MEC does not dispute that
this section applies to the accident, it is not applicable to the
work of MEC.”

ECF No. 153 at 5.

This Court notes that in response

to MEC’s motion in limine, R.V. Coleman states: “RV Coleman agrees
17

that the FMCSRs were inapplicable to the accident at issue as the
cargo was not in the course of transportation.”

ECF No. 158 at 6.

This Court finds that the Federal Motor Carrier Safety Regulations
(“FMCSRs”) are inapplicable to the work performed by MEC at the
time of the subject accident as the pipes at issue were no longer
“in transport”.7

This Court notes that in response to MEC’s motion

in limine, R.V. Coleman states: “RV Coleman agrees that the FMCSRs
were inapplicable to the accident at issue as the cargo was not in
the course of transportation.”

ECF No. 158 at 6.

Thus, evidence

pertaining to the FMCSRs shall be excluded from the consideration
of the deliberate intent claim asserted against MEC as the Court
finds that this standard is not specifically applicable to the work
and

working

condition

involved,

and

fails

to

satisfy

the

requirements of the deliberate intent statute.
Accordingly, the motion in limine to exclude evidence of
inapplicable regulations and standards filed by MEC Construction,
LLC (ECF No. 152) is granted in part and deferred in part.

7

See also Hoggard v. Arabi Cattle Co., No. 3:15CV00323 JM,
2017 WL 2532962, at *2 (E.D. Ark. June 9, 2017) (citing Turner v.
Goodyear Tire & Rubber Co., No. 02C5012, 2004 WL 3119008, at *5
(N.D. Ill. Dec. 2, 2004) (finding “that the regulations clearly
indicate that the FMCSR were not intended to cover or create a duty
in regards to accidents that occur while unloading cargo in a
private loading area”)); AmeriGas Inc. v. Landstar Ranger, Inc.,
230 Cal. App. 4th 1153, 179 Cal. Rptr. 3d 330 (2014) (holding
“Federal Motor Carrier Safety Regulations which require a carrier
to ensure its drivers have adequate training or experience in
securing loads on their trucks and to ensure its drivers adhere to
proper securement methods and procedures do not apply to unloading
cargo.”).
18

2.

Subsequent Remedial Measures
Third-party defendant MEC Construction, LLC filed a motion in

limine to exclude evidence of subsequent remedial measures (ECF No.
154) under Federal Rule of Evidence Rule 407.
subsequent

remedial

measures

are

not

MEC argues that

admissible

to

prove

negligence, culpable conduct, or a need for a warning instruction,
and that this evidence is not relevant to proving the elements of
a deliberate intent claim.

ECF No. 154.

R.V. Coleman filed a response in opposition (ECF No. 159) and
argues that MEC’s motion should be denied because post-accident
policies for unloading pipe from trailers that are not pre-chocked
are relevant to prove control and feasibility, and for impeachment,
which are stated exceptions o the rule.

ECF No. 159.

Defendant

states that MEC has argued that it was not responsible for placing
chock or block on the pipes at issue and that the same should be
accomplished by R.V. Coleman.

Id.

However, R.V. Coleman asserts,

subsequent to the accident, MEC developed a written policy with
specific procedures for handling pipes on trailers which do not
contain chocks or uprights, and this evidence should come in under
the “another purpose” subset of Rule 407. Id.

R.V. Coleman argues

that “the fact that MEC developed a specific policy for unloading
of pipe that is not secured by chocks subsequent to the accident at
issue demonstrates that there was nothing to prevent MEC chocking
and

blocking

the

pipes

prior

to

19

the

accident

at

issue

and,

therefore, has a direct bearing on the feasibility of precautionary
measures.”

Id.

Thus, R.V. Coleman states that “MEC’s Motion

should be denied as MEC’s post-accident policies for unloading pipe
on trailers that is not pre-chocked are relevant to prove control,
feasibility, and impeachment.”

Id.

Plaintiff Fielder filed a response in opposition (ECF No. 168)
and states that MEC’s motion in limine seeking to exclude entry of
any subsequent remedial measure must be denied as they are relevant
to establishing the specific unsafe working condition element of
West Virginia’s deliberate intent statute, W. Va. Code § 23-4-2(B),
and to proving, at a minimum, control and potentially other facts,
such

as

feasibility

of

precautionary

positions taken by MEC at trial.

measures

depending

on

Id.

Specifically, MEC moves to exclude all evidence relating to
subsequent remedial measures taken by MEC after the plaintiff’s
accident under Federal Rule of Evidence 407, which states that:
[w]hen measures are taken that would have made an earlier
injury or harm less likely to occur, evidence of the
subsequent measures is not admissible to prove:
•
•
•
•

negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.

But the court may admit this evidence for another
purpose, such as impeachment or — if disputed — proving
ownership, control, or the feasibility of precautionary
measures.
Fed. R. Evid. 704.

20

Federal Rule of Evidence 407 is designed to protect the
important policy of encouraging defendants to repair and improve
their products and premises without the fear that such actions will
be used later against them in a lawsuit.
F.2d 848, 853 (4th Cir. 1980).
law

rule

excluding

Werner v. Upjohn Co., 628

Rule 407, which enacts the common

subsequent

remedial

measures

to

prove

negligence, does, however, permit evidence of subsequent remedial
measures to be used to prove the feasibility of such measures, but
only if feasibility is controverted.

Id. at 853.

The exceptions

listed in Rule 407 are illustrative and not exhaustive.
856.

Id. at

Several exceptions to the rule have developed, but it is

clear that they must be narrowly construed if the central policy
behind the rule is to be effectuated.

Id. at 855.

R.V. Coleman asserts that “the fact that MEC developed a
specific policy for unloading of pipe that is not secured by chocks
subsequent to the accident at issue demonstrates that there was
nothing to prevent MEC chocking and blocking the pipes prior to the
accident at issue and, therefore, has a direct bearing on the
feasibility of precautionary measures.”

ECF No. 159 at 3.

The

last sentence in Rule 407, the part of the rule under which
evidence may be admissible for this purpose, has a threshold
requirement that the particular issue must be “disputed.”
Evid. 407.

Fed. R.

MEC submitted at the supplemental pretrial conference

in this civil action that “feasability” is not in issue as it is

21

not controverted.

To that extent, there is no argument to be made

under the feasability exception to the rule.
Thus, this Court is only left to determine whether the
evidence of subsequent remedial measures taken by MEC after the
plaintiff’s accident comes in under the “control” exception.

R.V.

Coleman’s argument can be reduced to its assertion that “[t]he
subsequently

developed

unloading

policies

of

MEC

rebut

MEC’s

assertion that it was not MEC’s responsibility to place chocks and
blocks on the pipes prior to beginning the unloading process.” ECF
No. 159 at 3.
This Court finds R.V. Coleman’s argument unpersuasive and that
such evidence is inadmissable.

The evidence shows that the

training conducted and procedures developed by MEC took place after
the accident involving the plaintiff occurred.

On the record,

there is no indication that this post-accident conduct could
actually show pre-accident control of the pipes at issue.

MEC did

not have “control” of the incoming trailer that it did not load or
transport.

MEC’s

written

“Safety

Reminder”8

setting

forth

instructions to be followed for the proper loading and unloading of
pipes is a subsequent remedial measure, which is not admissible to
prove a defendant’s negligence.
848, 853 (4th Cir. 1980).

Werner v. Upjohn Co., 628 F.2d

This Court finds that the subsequent

8

See “MECOOJ 368-1369” attached to R.V. Coleman’s response in
opposition as “Exhibit A.” ECF No. 159-1.
22

remedial measures taken by MEC after the plaintiff’s accident is
the type of situation contemplated by the rule.

Rule 407 promotes

an important policy of encouraging subsequent remedial measures
and, given the particular facts at issue, the Court finds that Rule
407 is to be directly applied rather than an exception.

The risk

that a jury may draw inferences from this evidence that Rule 407
identifies as impermissible leads the Court to further exclude the
evidence under Rule 403.

See Yates v. Ford Motor Co., No.

5:12-CV-752-FL, 2015 WL 2189774, at *8 (E.D.N.C. May 11, 2015). To
the extent evidence of post-accident policies implemented by MEC
are offered to show knowledge or causation, the Court finds this
evidence should be excluded under Rule 403.

The factors of undue

prejudice, confusion of issues, misleading the jury, and waste of
time remain for consideration under Rule 403.9

This Court finds

that introduction of such evidence would likely confuse and mislead
the jury to consider MEC’s post-accident policies as evidence of
negligence.

This is exactly the scenario contemplated by Rule 407

and is impermissible under the rule.
The evidence shows that there is no dispute as to which role
each party would play.

Arkos was to load to trailer, R.V. Coleman

was to transport the trailer, and MEC was to unload the trailer.
However, it is unclear, and disputed, if the “unloading phase” ever

9

See Notes of Advisory Committee on Rule 407.
23

actually began.

This type of issue is not the type of “control”

issue that would merit consideration of the exception.
Accordingly, the motion in limine to exclude evidence of
subsequent remedial measures filed by MEC Construction, LLC (ECF
No. 154) is GRANTED.

Exceptions may arise where the defendant

attempts to make offensive use of the exclusion of this evidence.
Should MEC place these issues in controversy at the time of the
trial

or

offer

evidence

that

would

open

the

door

to

using

subsequent remedial measures as impeachment evidence, this Court’s
ruling may change.

See Specialty Prod. Int’l, Ltd. v. Con-Way

Transp. Servs., Inc., 410 F. Supp. 2d 423, 428 (M.D.N.C. 2006).
Accordingly, the Motion in Limine to Exclude Evidence of
Inapplicable Regulations and Standards filed by MEC Construction,
LLC (ECF No. 152) is GRANTED in part and DEFERRED in part, and the
Motion

in

Limine

to

Exclude

Evidence

of

Subsequent

Remedial

Measures filed by MEC Construction, LLC (ECF No. 154) is GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

March 19, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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