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BYRNE v. LIQUID ASPHALT SYSTEMS

December 19, 2002

JOSEPH BYRNE AND CHRISTINE BYRNE, PLAINTIFFS,
V.
LIQUID ASPHALT SYSTEMS, INC., RUSSELL DEAN INC., INDIVIDUALLY AND D/B/A GARLOCK EAST EQUIPMENT CO. AND GARLOCK EQUIPMENT CO., DEFENDANTS.



The opinion of the court was delivered by: Gregory W. Carman, United States District Judge.

MEMORANDUM OPINION AND ORDER

I. Defendants' Motion to Exclude Evidence of OSHA Standards is Granted.

Defendants filed a motion on October 25, 2002 to exclude the use of OSHA standards as inadmissible against a manufacturer because such evidence is irrelevant and unduly prejudicial. Although there is no 2nd Circuit case directly on point, Defendants support their argument to exclude by citing Sundbom v. Erik Riebling, Co., No. 89 Civ. 4660, 1990 U.S. Dist. LEXIS 11297 (S.D.N.Y. Aug. 28, 1990). In that case, the court stated that generally, "courts have been reluctant to permit evidence of OSHA regulations in actions against manufacturers" for fear "that manufacturers would be unfairly held to standards that were not intended to be imposed upon them." Id. at *3. The court refers to this general rule of inadmissibility of OSHA standards against manufacturers as "the shield that was intended to protect manufacturers against being measured unfairly against standards of care that do not explicitly apply to them." Id. The court in Sundbom was asked to exclude evidence of OSHA standards to be applied against an employee. Id. at *1. In Sundbom, the manufacturer was attempting to introduce OSHA evidence against the plaintiff/employee to show that the product in question met the applicable OSHA standards. Id. at *3. While upholding the general prohibition against using OSHA standards against manufacturers, the court in Sundbom admitted the OSHA evidence against the employee. Id. at *4.

Rule 401 of the Federal Rules of Evidence defines relevant evidence as that "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. As Defendants argue, this Court finds that the admission of OSHA standards against the manufacturers in the present case would not assist the jury because OSHA standards were not intended to impose duties upon manufacturers and have no application against manufacturers of products. The Court agrees that allowing such evidence to be introduced would likely confuse or mislead the jury.

II. Defendants' Motion to Exclude Expert Testimony of Alfred Harmon is Granted.

Defendants filed a motion to exclude "any testimony or argument regarding any opinion of Plaintiffs expert, Alfred Harmon." (Defendants' Memorandum of Law in Support of Motion in Limine to Exclude Testimony of Plaintiffs Expert Alfred Harmon ("Defs.' Br.") at 20.) Defendants claim that the expert testimony of Alfred Harmon does not satisfy the Federal Rules of Evidence's requirements and does not pass the Daubert 2-prong relevance/reliability inquiry. Alfred Harmon ("Harmon") proposes to give expert testimony on the design of the asphalt kettle, the design of the asphalt tanker truck and platform, and the warnings that should have been in place on both pieces of equipment. (Report of Alfred Harmon at 2, Defs.' Ex. B.)

A. Federal Rules of Evidence

Rule 702 of the Federal Rules of Evidence states that "[i]f 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." FED. R. EVID. 702.

Rule 703 of the Federal Rules of Evidence states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." FED. R. EVID. 703.

B. Daubert Standard

In order to provide a more useful framework under which to apply Rules 702 and 703 in determining the admissibility of expert witness testimony, the Supreme Court set forth a two-prong relevance/reliability test. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). First, the trial judge must determine whether the expert is proposing to testify to scientific*fn1 knowledge. Id. at 592. "The adjective `scientific' implies a grounding in the methods and procedures of science" and "the word `knowledge' connotes more than subjective belief or unsupported speculation." Id. at 590. Second, the trial judge must determine if the testimony "will assist the trier of fact to understand or determine a fact in issue." Id. at 593. The evidence must be "not only relevant, but reliable." Id. at 589.

In Daubert, the Supreme Court listed several factors that should be considered in determining the ...


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