United States District Court, E.D. Wisconsin
DECISION AND ORDER
HON. RUDOLPH T. RANDA U.S. District Judge.
Fransisco Alcala, the involuntary plaintiff, fell from a catwalk in a chicken coop at S&R Egg Farms. The structure was designed and manufactured by a German company called Meller. Nationwide Agribusiness Insurance Company paid and continues to pay Alcala’s workers’ compensation benefits pursuant to an insurance policy issued to S&R. Nationwide brought this third-party liability action against Meller, alleging claims for breach of warranty, negligence, and strict liability. The Court granted Meller’s motion for summary judgment on the warranty claims, but denied summary judgment on the strict liability and negligence claims. 2015 WL 998331. Now before the Court are a series of motions in limine brought by Nationwide, Alcala, and Meller in advance of trial. These motions are resolved as follows.
Nationwide’s motions in limine
I. Speculation that a grate on the catwalk was not in place.
The Court understands this motion as referring to the catwalk portion of the chicken coop. See ECF No. 106-3. It appears to the Court that there were a series of grates that created the walkway/catwalk. Meller posits that a missing or misplaced grate could have caused Alcala’s fall.
The basis for this motion is perplexing. Evidence cannot be excluded simply because it hurts a party’s case; that is not “prejudice” in the sense envisioned by Rule 403. Indeed, the Court does not agree about the absence of evidence to support Meller’s theory. For example, Alcala testified that he felt no resistance as he fell, and workers occasionally moved the grates, creating the possibility that one was missing. However implausible, this is an issue of fact for the jury to sort through.
II. Evidence besmirching the safety character of S&R Egg Farms.
Nationwide argues that Meller should be precluded from offering evidence of (1) other accidents or incidents involving S&R or its employees; (2) a poor safety character, unsafe work environment, or other evidence besmirching S&R’s safety environment; and (3) safety violations by S&R before or after the incident. See Fed. R. Evid. 404 (Character evidence). Meller counters that it is not seeking to introduce evidence that S&R acted in conformity with an unsafe character with respect to Alcala’s injury. Instead, Meller argues that it should be allowed to introduce evidence that S&R knew that its employees, including Alcala, worked on elevated improvised wooden platforms without fall protection. Fed.R.Evid. 404(b)(2) (other act evidence “may be admissible for another purpose, ” including knowledge). Neither the use of improvised platforms nor S&R’s knowledge of their use is relevant to the salient issue in this case: whether Alcala’s injuries were caused by a defective chicken coop. Alcala did not fall while he was sitting on an improvised platform. Therefore, this evidence must be excluded as irrelevant and as improper character evidence.
III. Computer simulations.
Nationwide moves to bar evidence of or testimony based upon computer modeling of the accident conducted by Meller’s expert, Dr. Albert Karvelis. Meller never produced the underlying data or the computer simulation used by Dr. Karvelis. Fed.R.Civ.P. 26(b)(2)(B). In fact, counsel for Meller affirmatively blocked Nationwide’s attempt to see the data during Dr. Karvelis’ deposition. Dr. Karvelis’ expert report included pictures from the modeling, but as he explained at his deposition, “I can’t put a computer program on paper.” In response, Meller deflects and states that Nationwide could obtain the software on its own behalf (for free) via download, but this is unsatisfactory because it would not reflect the thought process behind Dr. Karvelis’ use of the computer model. Ultimately, Nationwide was entitled to see Dr. Karvelis use the computer simulation and cross-examine him about its use. This never happened. Therefore, the evidence must be excluded. Fed.R.Civ.P. 37(c)(1).
IV.-V. Violation of OSHA regulations by Alcala or S&R.
OSHA’s duty to provide a safe workplace applies to employers for the benefit of its employees. Burnett v. A. Bottacchi S.A. de Navegacion, 882 F.Supp. 1050, 1054 (S.D. Fla. 1994). Thus, a purported OSHA violation cannot defeat a claim for liability against a third party such as Meller. Kuta v. Newberg, 600 N.W.2d 280, 285 (Iowa 1999) (“OSHA standards are adopted for the protection of employees and should not be applied to defeat an employee’s claim against a third party”).
In response, Meller argues that the Court should backtrack and rule that the opinion of Nationwide’s expert, Michael Wright, is inadmissible because it draws upon OSHA regulations. The Court’s previous ruling recognized, at least implicitly, that OSHA regulations are relevant to a manufacturer’s duty to provide a safe product. See, e.g., Del Cid v. Beloit Corp., 901 F.Supp. 539, 548 n.7 (E.D.N.Y. 1995) (“compliance or lack of compliance” with OSHA regulations “is not dispositive of the issue of design defect, but is merely some evidence of such a defect”) (collecting cases); Dominguez v. Excel Mfg. Co. Inc., No. C-09-03611 EDL, 2010 WL 4698739, at *4 (N.D. Cal. Nov. 8, 2010) (“OSHA directives can be considered for purposes of establishing the standard of care required by the manufacturer in the design and manufacture of its product, …”). Therefore, Meller’s counterargument regarding Wright’s opinion is rejected.
VI. Feather removal process.
As explained above, the process by which S&R employees removed feathers has nothing to do with how or why the floor collapsed. It is also not relevant that the “molting” process, during which the birds lose their feathers, is illegal in Germany. Essentially, Meller is attempting to confuse the relevant issue in this case and blame S&R for allowing/requiring its employees to pick feathers on the catwalk. The catwalk was built, or should have been built, so people can walk on it. All that matters is whether the catwalk collapsed because of a product defect, not why Alcala was walking on the catwalk in the first place. Contributory negligence or “intended use” may be an issue, see, e.g., Green v. Smith & Nephew AHP, Inc, 629 N.W.2d 727, 747 (Wis. 2001), but as the Court has commented before, a floor should not collapse under the weight of just one man.
VII. Absence of prior incidents.
Evidence of the lack of prior accidents is “only admissible when the party seeking to introduce the evidence establishes that the lack of accidents was in regard to products that are ‘substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident to allow the jury to connect past experience with the accident sued upon.’” Klonowski v. Int’l Armament Corp., 17 F.3d 992, 996 (7th Cir. 1994) (quoting Walker v. Trico Mfg. Co., Inc., 487 F.2d 595, 599 (7th Cir. 1973)). In Wisconsin, this evidence is only “slightly probative” and “generally held inadmissible because of its insignificant probative qualities and its tendency to introduce a multitude of collateral inquiries.” Id. (quoting Hannebaum v. Direnzo & Bomier, 469 N.W.2d 900 (Wis. Ct. App. 1991)).
Most of Meller’s products are sold in Europe. Thus, Meller cannot establish similar use because molting is illegal in Europe, so workers do not pick feathers from the belts as Alcala was doing when he fell. Moreover, Meller admits that “[e]very type of equipment is measured- made, it’s very individual. And of course the customers have completely different requirements.” Jan Kreyer Dep. at 22. Finally, at some point Meller “started ordering equipment of much inferior quality, ” skimping on “the thickness of the steel.” Frank Schimpf Dep. at 49. Therefore, Meller cannot establish a safety record in the context of substantially similar products.
VIII. Meller’s expert did not inspect the accident site.
Dr. Karvelis has a medical condition that causes the spontaneous appearance of open cuts on his feet and fingers. As a result, Karvelis was unable to inspect the accident site because the presence of open cuts violates S&R’s biosecurity protocols. Karvelis sent associates in his stead to conduct the inspection. By this motion, Nationwide seeks to bar Meller from suggesting that S&R or Nationwide are to blame for Karvelis not attending the inspection.
In response, Meller states that it should be allowed to raise the issue if Nationwide attempts to undermine Karvelis’ credibility for not personally inspecting the site. The parties seem to agree that Karvelis should be allowed to explain why he did not personally inspect the site. Nationwide suspects gamesmanship, particularly because Meller never sought any sort of accommodation for Karvelis’ condition. Even so, the Court sees little harm in the parties going back and forth on the reasons that underlie Karvelis’ failure to personally inspect the site. This motion is denied.
IX. Subsequent purchases/continuing business relationship between Meller and S&R.
The implication that S&R would not continue buying Meller products if the catwalk was actually defective is exceedingly weak in this case: the parties have a long-standing business relationship that goes back years; the subsequent purchases are of different types of products; and S&R received assurances from Meller that it would provide higher-quality products after the accident. Therefore, evidence of S&R’s post-accident purchases from Meller are excluded as irrelevant and due to the danger that that such evidence will obfuscate or confuse the salient and primary issues in this case. Fed.R.Evid. 401, 403.
X. - XI. Fault attributed to Nationwide; unemployment benefits.
Meller does not oppose these motions, which are granted.
XII. Testimony of Josh Jones.
Nationwide seeks to preclude the possibility that Meller will move to read Jones’ deposition testimony into the record, as opposed to calling him to testify as a live witness. The Court cannot prejudge the possibility that, for whatever reason, Meller might be entitled to use Jones’ deposition testimony at trial. See Fed. R. Civ. P. 32(a)(4); Fed.R.Evid. 804. Therefore, this motion is denied as premature.
XIII. Prejudicial labeling of S&R’s workforce, including Alcala.
Meller agrees that it will not cast aspersions on Alcala because of his race or ethnicity. At the same time, Alcala’s work ethic is relevant to whether he mitigated his damages. The issue is also relevant to the extent that Alcala was malingering, faking or exaggerating the extent of his injuries. On that understanding, Nationwide’s motion is granted.
XIV. Speaking German at trial.
Nationwide argues that defense counsel, who speaks German, should be ordered not to speak German with witnesses from the time that the witness has been called to the stand until the time that the witness is released. This is inappropriate because Meller is a German company and its representatives are native German speakers. Counsel obviously has a duty to communicate with his clients. Meller’s counsel agrees not to address the Court, opposing counsel, the jury or court staff in German. Meller agrees that it will have a German interpreter at trial.
XV. Errata sheet of Jan Kreyer.
Nationwide joins the separate motion filed by Alcala, which will ...