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

United States District Court, N.D. West Virginia

March 19, 2018

JASON FIELDER, Plaintiff,
v.
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

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         Pending before this Court are two motions in limine filed by third-party defendant MEC Construction, LLC (“MEC”). The trial of this civil action[1] 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 Regulations and Standards filed by MEC 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 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. Following the response of the remaining parties, this Court 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 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 is not grounds for exclusion of said regulations/standards. 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. 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.” ECF No. 166. Plaintiff contends that the fact that there is 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 and/or R.V. Coleman do not satisfy the above criteria, then the plaintiff does not disagree 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 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, plaintiff[2] 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 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 certain transactions or actions comply with regulations.” Id. at 5. 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, 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 respective opinions and submit the issue to the jury. Id. at 3. 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), 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).

         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 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 its application of West Virginia Code § 23-4-2(d)(2)(2005).[5] Specifically, this Court will consider the 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. ...


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