Court: United States District Court for the Middle District of Pennsylvania
Case Name: Dyvex Indus. v. Agilex Flavors & Fragrances, Inc.
Citation: 2018 U.S. Dist. LEXIS 47519
The plaintiff filed this product liability case alleging that the defendant’s defective polymer fragrance oil caused a fire and destroyed its facility. The plaintiff filed a motion for partial summary judgment alleging it did not owe the defendant any duty of care with respect to OSHA or other safety standards. The court granted the plaintiff’s motion for partial summary judgment, and the defendant subsequently hired an OSHA expert witness to support its case. The plaintiff attempted to preclude the OSHA expert’s testimony regarding the alleged duties and standards of care it owed to the defendant.
The OSHA Expert
The defendant retained a nationally-renowned OSHA consultant who offers employers professional safety training. The expert witness also founded a company that provides OSHA expert witnesses for prosecution and defense attorneys. The expert is skilled in reviewing occupational deficiencies in workplace tort cases and performing jobsite safety inspections. He also provides professional analysis and review services for cases involving workplace accidents, industry standards, and safe work customs and practices in accordance with OSHA guidelines.
The OSHA expert has experience working in industry and construction in the private sector, and he formerly worked as a professional construction tradesman. The expert was trained by federal and state OSHA and is a former OSHA inspector for the Department of Labor in a midwestern state. Over the course of his career, the expert has conducted onsite inspections on construction projects worth over $2 billion.
The expert was of the opinion that if the plaintiff had had the proper fire safety prevention standards, as required by the stated provisions and codes, in place, then it would have been able to put out the fire and minimize damage to the building. The OSHA expert further opined that the plaintiff was required to have a sprinkler system at its building and that the plaintiff failed to hire competent persons, to ensure that a job hazard analysis was performed, to properly train its personnel, or to have policies and procedures in place to safeguard its people and property.
The defendant asserted that partial summary judgment should be rendered in its favor, claiming that the plaintiff was negligent in failing to install the requisite sprinkler system. However, the time for the defendant to file a negligence counterclaim was long before this point in the case. Since the proper time had passed, the court would not consider the defendant’s request. The court found no evidence that the plaintiff was in violation of any OSHA regulations.
The court noted that since the plaintiff’s partial summary judgment excluding the defendant’s claims was based on safety violations, the expert witness was not allowed to testify regarding non-compliance with OSHA and industry safety standards as well as building codes. This was also because the plaintiff did not owe a duty of care to the defendant. The OSHA expert was further precluded from testifying that the plaintiff’s violations had resulted in a fire and caused an increase in the amount of damage the defendant’s building suffered from fire.
The OSHA expert was, however, allowed to testify about the processing work done by the plaintiff at the time of the fire and about the location of the defendant’s open drum of oil. The court found that the OSHA expert had sufficient business foundation and acumen to render his opinion that the plaintiff could have rebuilt its business after the fire. The OSHA expert was further allowed to offer opinions about the Plaintiff’s experts to the extent that those opinions were not based on any OSHA regulations or other safety codes and standards.
The plaintiff’s motion to exclude the testimony of the defendant’s OSHA expert witness was granted in part and denied in part.