Edwards v. McElliotts Trucking, LLC et al

Filing 129

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant Cardinal Transport's 102 Omnibus MOTIONS in Limine, as more fully set forth herein. Signed by Judge Robert C. Chambers on 8/22/2017. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
RICHARD EDWARDS, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-1879

McELLIOTTS TRUCKING, LLC;
DANNY McGOWAN, individually and as
an employee of McElliotts Trucking, LLC and/or
as agent of Cardinal Transport;
CARDINAL TRANSPORT, INC.;
HAROLD MIDKIFF, individually as agent driver of
McElliotts Trucking, LLC and/or as agent driver of
Cardinal Transport, Inc.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Cardinal Transport’s Omnibus Motions in Limine,
ECF No. 102, and Motion in Limine to Exclude Expert Testimony of Brooks Rugermer, ECF No.
101. For the following reasons the Omnibus Motions are GRANTED in part and DENIED in part.
Cardinal subdivided its Omnibus Motion into fifteen different motions each designated by
a letter of the alphabet, starting with the letter “A.” The Court will address each lettered motion in
turn.
A. Motion to preclude reference to the maintenance or brakes on the subject forklift being
inadequate or in any way contributing to the accident
Cardinal believes that Plaintiff Richard Edwards has not produced any evidence to support
a theory that the brakes of the forklift used to lift the rod that injured him, and therefore, Edwards
should be precluded from introducing an argument based on this theory. In response Edwards

claims that during discovery he requested maintenance records of the forklift from Defendants.
Defendant McElliotts Trucking, owner of the forklift, informed Edwards that it had no
maintenance logs at the time but would supplement discovery when they were located. McElliotts
never provided the logs, if any ever existed. Although the record was never supplemented,
Edwards never moved the Court for an order compelling the production of maintenance records.
At this stage in the case Edwards has forfeited his right to those materials and shall be precluded
from referencing the lack of maintenance records at trial.
Nevertheless, Edwards has produced evidence that the forklift’s brakes may not have been
operating properly. In his deposition testimony, Edwards testified that when the forklift is in either
forward or reverse gear and the brake is depressed, the brakes would release after a short time and
the forklift would start moving. Edwards Dep. 79, Pl.’s Resp. to Def.’s Omnibus Mots. in Limine,
Ex. 2, ECF No. 110-2. The driver would have to reapply the brake to stop the forklift. Id. There is
no reason why Edwards should be precluded from testifying about his personal knowledge of the
condition and workings of the forklift. The testimony is relevant to the cause of his injury.
GRANTED in part and DENIED in part.
B. Motion to preclude reference to any OSHA regulations
The Motion requests the Court limit Edward’s expert Brooks Rugermer from testifying
about the applicability of OSHA regulations to the site of Edwards injury. This motion is in
addition to Cardinal’s motion to exclude Brooks Rugermer, Edwards’ expert on OSHA safety
regulations, among other things. Cardinal argues that Rugermer’s testimony advances inadmissible
legal conclusions about which OSHA regulations apply to the site of the injury and, in the
alternative, as a matter of law OSHA regulations do not apply to this case and therefore reference
to them should be inadmissible.

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Edwards plans to advance a negligence per se theory of liability at trial. Thus, whether a
particular OSHA regulation is applicable and was violated by Defendants is of paramount concern
to the success of Edwards’ case. The Court, however, cannot make a determination on Cardinal’s
Motion based on the meager briefing before the Court. Neither party adequately treats the subject
in their briefing, offering only conclusory statements. Edwards further muddies the waters with
references to OSHA regulations not mentioned in Rugermer’s expert report and not discussed in
the excerpt of the deposition testimony that accompanied Cardinal’s motion to exclude Rugermer’s
testimony.
Accordingly, the Court will HOLD this motion in ABEYANCE. Edwards shall submit to
the Court a supplemental response that recites with particularity every OSHA regulation discussed
in Rugermer’s expert report or during his deposition testimony and was violated by Defendants.
The applicability of the named regulations to the site where Edwards was injured should be
supported with specific citations to case law and other legal precedent, including, but not limited
to, OSHA guidance documents. Edwards shall tender the supplemental response fourteen days
from the date of this order. Defendants shall have seven days to reply. The Court will take up the
issue at a Pretrial Motions Hearing scheduled for October 3, 2017 at 10:00 a.m.
C. Motion to preclude any references to free rigging as being a violation of OSHA regulations
or as contributing to the accident
Cardinal contends that Edwards has not produced any evidence that Defendants did not
observe OSHA regulations concerning free rigging. Cardinal’s motion implicates the same
concerns the Court had in the previous motion. It is not clear which OSHA regulations are
implicated—Rugermer quoted a guidance document in his expert report and within that quotation
a number of regulations were cited, not all of which are obviously applicable. If not already clear

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from the Court’s treatment of the previous motion, Edwards should include a discussion of OSHA
free rigging regulations in his supplemental reply.
Cardinal also argues that all the evidence in the case indicates that the metal rod was resting
on the truck when it fell, and therefore, however the forklift was rigged, it was not a cause of
Edwards’ injury. Discussion of the rigging, therefore, should be inadmissible. Quite the contrary,
Edwards testified in his deposition that the rod fell while McGowan was placing it on the trailer.
Edwards Dep. 71. When he examined his leg after the rod fell on it, the rod was still hooked to the
forklift by the rigging installed by McGowan. Id. Cardinal’s motion requests the Court resolve a
factual dispute properly left to the jury. Evidence of how the forklift was rigged may be introduced
as it is relevant to the cause of Edwards’ injury. DENIED.
D. Motion to preclude any references to use or non-use of personal protective equipment as
causing or contributing to the accident
Cardinal argues that Edwards has produced no evidence related to the use of personal
protective equipment and its possible effect on Edwards’ injury. In general, Cardinal and Edwards
mean steel-toed boots when they refer to personal protective equipment. Again, Cardinal ignores
deposition testimony that supports Edwards’ claims. Cardinal’s expert James McIntosh under
questioning by Plaintiff’s counsel conceded that steel-toed boots were a way to mitigate injuries
related to falling heavy objects such as large metal rods. McIntosh Dep. 68, Pl.’s Resp., Ex. 7, ECF
No. 110-7. McGowan in his own testimony admitted that he was unsure whether Edwards was
wearing steel-toed boots. McGowan Dep. 103, Pl.’s Resp., Ex. 1, ECF No. 110-1. Although it is
not obvious how Edwards will introduce this evidence, it is admissible. It was discussed by
McGowan and Cardinal’s expert and is relevant to Defendant’s negligence. DENIED.
E. Motion to exclude reference to the general safety record of Cardinal
GRANTED as unopposed.
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F. Motion to exclude inference as to lack of corporate representative at trial
GRANTED as unopposed.
G. Motion to exclude any references to Cardinal’s insurers or the existence of insurance
coverage
GRANTED as unopposed.
H. Motion to exclude references to any non-testifying persons available to both parties as a
witness
GRANTED as unopposed.
I. Motion to preclude Plaintiff from mentioning that Cardinal failed to call a potential witness
to testify
GRANTED as unopposed.
J. Motion to preclude improper arguments as to damages
GRANTED as unopposed.
K. Motion to limit testimony to opinions disclosed in discovery
GRANTED as unopposed.
L. Motion to exclude any evidence not produced by Plaintiff during discovery and any claims
or arguments based on such evidence
GRANTED as unopposed.
M. Motion to exclude any references to Cardinal’s size, wealth or financial condition
GRANTTED as unopposed.
N. Motion to exclude any references to or any evidence, testimony or argument concerning
any other lawsuits or complaints against Defendant
GRANTED as unopposed.
O. Motion to exclude evidence regarding remedial measures
GRANTED as unopposed.

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The Court DIRECTS the Clerk to send a copy of this Order and Notice to counsel of record
and any unrepresented parties.

ENTER:

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August 22, 2017