BACKGROUND: This case was a negligence action arising out of a workplace injury. Plaintiff Milton B. Adams, while working as an employee of non-party Rockwood Corporation, fell from a height of approximately 39 feet from scaffolding that had been at least partially constructed by defendant New England Scaffolding, Inc. (“NESI”). The complaint alleged that NESI constructed the scaffolding in a negligent and unsafe manner and that Adams sustained severe neck and back injuries as a result of the fall. Defendant moved to exclude the testimony of plaintiff’s employment expert witness, David L. Berard.
Plaintiff’s expert witness, David Berard, was a licensed professional engineer with a B.S. from Lowell Technological Institute. He was a consultant in occupational safety and health and a part-time instructor in safety and health at Keene State College and The Safety and Health Council of Northern New England. From May 2000 to January 2009, he was a Compliance Assistance Specialist for the Occupational Safety and Health Administration (OSHA), and prior to that he was an OSHA Compliance Officer from March 1977 to May 2000.
Berard’s expert report, among other things, included the following statements:
A review of OSHA standards which indicated that several safety standards were not being followed by NESI. The fact that NESI knew and agreed in their deposition that their workers and any subsequent worker using the scaffold needed a scaffold, which was in compliance with the OSHA standards. Additionally, the report included that several contracted specifications, supplied by NESI for the scaffold to be erected in accordance with the OSHA standards, were not being followed by NESI.
Berard concluded that: “It is my opinion, within a reasonable degree of certainty and within my profession of safety, the lack of safety precautions to protect the workers on the scaffold erected by NESI allowed hazards associated with working at an elevated location to exist. Due to these unabated hazards the plaintiff sustained serious injuries when he accidentally fell from an unprotected scaffold platform. NESI had a duty under OSHA standards and contractually to provide a minimum level of safety protection. They failed to do so.”
NESI contended that Berard was not qualified to render such an opinion and that his opinion constituted improper expert testimony as to a legal issue, which is properly reserved to the Court.
The Court allowed some of Berard’s testimony and disregarded other aspects of it. The Court allowed Berard to testify as to the existence of the relevant OSHA regulations, the application of those regulatory standards to the facts of the matter, and his opinion that NESI was acting in violation of those regulations.
However, the Court did not allow Berard to testify as to the contractual matters involved. This included Berard’s statements that NESI owed its employee Adams a duty, that they breached this duty, and that this alleged breach caused Adams’s injuries.