United States Court of Appeals
For the First Circuit
No. 05-2797
GARY D. PELLETIER,
Plaintiff, Appellant,
v.
MAIN STREET TEXTILES, LP; TYNG TEXTILES, LLC;
CHARLES MCANSIN ASSOCIATES, LP; MCDONNA, LLC;
JOAN FABRICS CORPORATION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.
Kathy Jo Cook, with whom Keches & Mallen, P.C. was on brief,
for appellant.
Michael A. Fitzhugh, with whom Barbara L. Horan and
Fitzhugh, Parker & Alvaro, LLP were on brief, for appellees.
December 4, 2006
*
Of the Northern District of California, sitting by
designation.
LYNCH, Circuit Judge. Gary D. Pelletier brought suit in
tort against Main Street Textiles, LP ("Main Street"); TYNG
Textiles, LLC; Charles McAnsin Associates, LP; McDonna, LLC; and
Joan Fabrics Corporation, seeking to recover for serious injuries
sustained while working at a Main Street site as a rigger. A
rigger is one who specializes in the moving of very large and
complicated machinery. Pelletier was not an employee of Main
Street or any of the defendants. Rather, he worked for Three D
Rigging, which had a contract with Main Street to work on site. A
jury returned a verdict for the defendants, and the district court
denied Pelletier's motion for a new trial.
On appeal, Pelletier argues that a new trial is warranted
because the district court improperly excluded two OSHA safety
standards proffered by Pelletier and limited the testimony of one
of his experts. Finding no abuse of discretion and, in any event,
no prejudice to Pelletier from these rulings, we affirm the
judgment of the district court.
I.
In October 2000, Main Street hired Three D Rigging to
move textile equipment and machinery as part of its relocation out
of the "old mill," a facility that was more than 120 years old.
Pelletier, a rigger with twenty years' experience, was employed by
Three D Rigging, and he worked on the Main Street job from October
2000 through July 2001.
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On July 31, 2001, while working at the old mill,
Pelletier was seriously injured when the top of a ten-foot-high,
460-pound steel A-frame that he was moving with a forklift fell and
struck him on the head. The impact caused a fracture dislocation
of the spine in Pelletier's neck, resulting in quadriplegia.
The parties dispute how the accident occurred.
Pelletier, who was alone at the time, gave the following account.
Pelletier had secured the A-frame to the mast of the forklift using
a single strap, and he had tilted the forks of the forklift up
slightly for better stability. He planned to move the A-frame
across an open space, and in doing so, he needed to move the
forklift from a portion of the floor covered by a metal plate to an
uncovered wooden floor. Pelletier said that as the forklift moved
off the plate and onto the wood floor, the forklift and A-frame
began to sway. Concerned about the integrity of the uncovered wood
floor, Pelletier tried to back up to the plated portion of the
floor, but when he gave the forklift gas, the tires spun
momentarily, then caught, causing the forklift to lurch backwards.
This, in turn, caused Pelletier to be thrown forwards and to hit
the tilt control lever. The lever tilted the forks downwards,
causing the base of the A-frame to slide forward, until the top of
the A-frame slipped over the mast of the forklift and struck
Pelletier on the head.
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Main Street offered a different version of events,
tending to show that Pelletier had slipped while standing up to
tighten the strap around the A-frame.
In January 2003, Pelletier filed a complaint in the
federal district court in Massachusetts against Main Street and
related corporate entities under diversity jurisdiction. The
complaint alleged that Pelletier's accident was the result of the
defendants' negligence and sought compensatory damages.1
As later developed at trial, Pelletier had two main
theories of negligence. First, Pelletier alleged that Main Street
had been negligent in maintaining the premises of the old mill.
According to Pelletier, the deteriorated condition of the wood
floor, together with the fact that much, but not all, of the floor
had been covered with metal plates, caused the swaying that
Pelletier had noticed and the need to back up from the wood floor
onto the plated portion of the floor. Moreover, Pelletier alleged
that Main Street's failure to clean up oil left on the floor by the
textile equipment and to otherwise keep the floors clean caused the
forklift to lurch backwards when he tried to back up.
Pelletier's alternative theory of negligence was that
Main Street exercised sufficient control over the work of Pelletier
1
Three D Rigging failed to carry workers' compensation
insurance prior to Pelletier's accident. Lee Duby, Sr., the sole
owner of Three D Rigging, filed for bankruptcy on December 15,
2003, and received a discharge on March 9, 2004.
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and Three D Rigging that Main Street was responsible for ensuring
the safety of that work. The Three D forklift that Pelletier had
been using was not equipped with an overhead guard; such a guard
would have prevented the A-frame from hitting him. According to
Pelletier, Main Street had a responsibility to ensure that such
guards were used, at least where there was sufficient overhead
clearance to use a guard, as there was where Pelletier was moving
the A-frame.
Main Street, for its part, put forward multiple defenses.
First, Main Street argued that the accident could not have happened
as Pelletier described, and it cast doubt both on whether the
forklift could sway and lurch and on whether Pelletier could have
hit the tilt control lever in the sequence of events he described.
Moreover, Main Street alleged that Pelletier himself was
responsible for the accident because he had failed to secure the A-
frame to the forklift using a second strap.
As to the premises, Main Street asserted that Pelletier
was well aware of any potential hazards, having worked at that site
for some time, and that nothing about the condition of the floor
made it unreasonably dangerous to work on. Main Street cast doubt
on whether there was any significant amount of oil on the floor and
also argued that by the time of the accident, oil was only being
spilled as a result of Three D's activities and it was Three D's
responsibility to clean it up.
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Finally, Main Street denied having or exercising any
control over Three D's rigging methods and thus any responsibility
for the safety of those methods. As to the issue of overhead
guards, Main Street asserted that it met whatever responsibility it
had because it had raised the issue with Three D, and that it had
no responsibility to act directly to prevent the use of forklifts
without guards. In any event, the forklift that Pelletier was
using had no guard because it was generally being used in an area
without sufficient clearance for a guard; Main Street asserted that
it had no reason to suspect that Pelletier would use that forklift
in an area with greater clearance.
On May 5, 2005, the jury returned a verdict for the
defendants, finding no negligence. On May 31, 2005, Pelletier
filed a motion for a new trial, on three grounds. Pelletier argued
that the district court had erred: (1) in excluding two OSHA
regulations, 29 C.F.R. § 1926.20(b)(2) and (3), that provided
safety standards for construction work; (2) in refusing to conduct
a voir dire with his safety engineering expert in order to
determine the relevance of the proffered OSHA regulations; and (3)
in limiting that expert's testimony and refusing to allow the
expert to testify about industry customs and practices of safety.
On September 21, 2005, the district court denied the
motion for a new trial, rejecting all of Pelletier's claims of
error. It found that Pelletier had not met his burden to lay an
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adequate foundation for the admission of the excluded regulations,
and had not shown that the regulations "were properly applicable to
Main Street or relevant to the issues being tried." Further,
Pelletier had failed to proffer other regulations defining the
terms used in the proffered regulations, potentially leading to
jury confusion. Moreover, the court held it was not required to
hear Pelletier's safety expert on voir dire.
As for the limitation on the safety expert's testimony,
the court explained that Pelletier's new trial motion argued that
the expert "would have testified only as to industry custom and
practices in general," but "during trial plaintiff's counsel
proposed that [the expert] be permitted to testify with respect to
which OSHA regulations were relevant to safety at the Old Mill."
The court stated that it had precluded the expert from providing
such testimony because it would have usurped the court's function
in instructing the jury on the law. The court noted that Pelletier
had then suggested that his expert "be allowed to testify about
which industry customs and practices relating to safety had been
violated at the Old Mill." Because the expert "had never visited
the Old Mill" and had apparently based his opinions on deposition
testimony and preliminary expert reports about the accident, the
court found that his opinion "would have been based upon
insufficient facts or data and, therefore, was inadmissible
pursuant to Fed. R. Evid. 702." Finally, the court found that the
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proposed evidence and testimony were "unlikely to have affected the
outcome of the trial."
II.
We review rulings on the admission of evidence for abuse
of discretion. See United States v. Guerrier, 428 F.3d 76, 79 (1st
Cir. 2005). Moreover, we "disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties." Fed. R. Civ. P. 61; see also Kelley v. Airborne Freight
Corp., 140 F.3d 335, 346 (1st Cir. 1998). Thus, even if an
evidentiary ruling is erroneous, we will not disturb the jury's
verdict "if it is highly probable that the error did not affect the
outcome of the case." McDonough v. City of Quincy, 452 F.3d 8,
19-20 (1st Cir. 2006).
A. OSHA Regulations
At trial, Pelletier sought to introduce a number of OSHA
regulations, as well as Massachusetts Building Code regulations.
The district court admitted some of those regulations, but excluded
two at issue here: 29 C.F.R. § 1926.20(b)(2) and (3). These two
regulations state in their entirety:
§ 1926.20 General safety and health
provisions.
. . .
(b) Accident prevention responsibilities.
. . .
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(2) Such programs shall provide for frequent
and regular inspections of the job sites,
materials, and equipment to be made by
competent persons designated by the employers.
(3) The use of any machinery, tool, material,
or equipment which is not in compliance with
any applicable requirement of this part is
prohibited. Such machine, tool, material, or
equipment shall either be identified as unsafe
by tagging or locking the controls to render
them inoperable or shall be physically removed
from its place of operation.
The district court found that Pelletier had not laid an
adequate foundation for the introduction of these regulations; we
see no abuse of discretion in the court's ruling. The challenged
regulations appear in Part 1926 of 29 C.F.R., entitled "Safety and
Health Regulations for Construction." 29 C.F.R. § 1910.12(a)
provides that "[t]he standards prescribed in Part 1926 of this
chapter . . . shall apply . . . to every employment and place of
employment of every employee engaged in construction work."
"Construction work" is defined to be "work for construction,
alteration, and/or repair, including painting and decorating."
29 C.F.R. § 1910.12(b). The § 1926 regulations would thus only
have been relevant if Pelletier was an "employee engaged in
construction work." Id. § 1910.12(a). Pelletier failed to
establish an evidentiary basis for such a finding.
Pelletier argues that an adequate foundation was laid
through the testimony of James Brown, Main Street's safety manager,
and the testimony of Paula Vaccaro, the OSHA inspector who
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investigated the accident. Brown, however, testified merely that
he "considered it [a] construction site," and he indicated that he
"was not as familiar with" § 1926. The district court did not
abuse its discretion in finding Brown's testimony insufficient to
establish that the old mill was a construction site within the
meaning of the OSHA regulations. Similarly, Vaccaro issued OSHA
citations, but she did so on the basis of § 1910, the general
regulations applicable to all industries, rather than the § 1926
construction regulations. Vaccaro testified that she "strictly did
[§] 1910" investigations and that the conditions at the old mill
had not prompted her to "inquir[e] as to whether or not Main Street
had violated the construction code, [§] 1926." Thus, Vaccaro's
testimony did not establish a foundation for the admission of the
§ 1926 regulations.
Pelletier argues that nonetheless the applicability of
§ 1926 to his work was clear on the face of the regulations.
Whether Pelletier was engaged in "construction, alteration, and/or
repair" is hardly self-evident, however, and cannot be determined
from the regulations alone. See 29 C.F.R. § 1926.13(a) (stating
that the interpretation of the terms "construction," "alteration,"
and "repair" in the Davis-Bacon Act "have considerable precedential
value in ascertaining the coverage of" § 1926); id. § 4.116(b)
(stating that "the demolition or dismantling of buildings or other
structures" on a site with "no further construction activity at the
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site" is not construction, alteration, or repair under the Davis-
Bacon Act). OSHA has noted that the determination of what
constitutes construction work "must be made on a case-by-case
basis, taking into account all information available at a
particular site." OSHA Standard Interpretation, Construction vs.
Maintenance, August 11, 1994. In the absence of any developed
legal or factual basis for applying the § 1926 regulations,
Pelletier cannot rely on the language of the regulations, standing
alone, to establish their applicability.
Moreover, the exclusion of the § 1926 regulations did not
affect Pelletier's "substantial rights." See Fed. R. Civ. P. 61.
Other OSHA regulations and Main Street's own safety policies were
admitted, and both of these established a standard of care that was
substantially similar to the standard established in the excluded
regulations. Main Street's safety policy specifically provided
that the safety director was responsible for "[i]nspections" to
ensure "compliance with OSHA safety laws and regulations." This
essentially captured the requirement in 29 C.F.R. § 1926.20(b)(2)
of "frequent and regular inspections of the job sites, materials,
and equipment."
Similarly, 29 C.F.R. § 1910.178(p)(1), which was admitted
at trial, provides that "[i]f at any time a powered industrial
truck is found to be in need of repair, defective, or in any way
unsafe, the truck shall be taken out of service until it has been
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restored to safe operating condition." Since the forklift, a
powered industrial truck, was the only piece of "machinery, tool,
material, or equipment" that Pelletier had alleged was unsafe, the
requirement in 29 C.F.R. § 1926.20(b)(3) to render all such unsafe
equipment inoperable or to physically remove such equipment would
have been superfluous.
Pelletier appears to argue that the § 1926 regulations
were necessary to show Main Street's, as opposed to Three D's,
safety responsibilities. The regulations on their face, however,
do not purport to establish who is responsible for what
requirements, and Pelletier has not cited anything that suggests
that the rules in this regard differ depending on whether the work
is construction work. For example, OSHA Directive CPL 02-00-124,
Multi-Employer Citation Policy, December 10, 1999, which describes
the responsibilities of "controlling employers," applies "OSHA-
wide." If Pelletier had wanted to introduce additional evidence to
demonstrate Main Street's responsibilities, he could have done so
without regard to whether the construction regulations were
admitted; the exclusion of those regulations had no material effect
on his case.
B. Safety Expert's Testimony
Pelletier describes two different types of testimony by
Richard Twomey, his safety expert, that he argues were improperly
excluded. First, he asserts that Twomey should have been permitted
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to testify about the applicability of OSHA regulations to Main
Street's conduct. Second, he claims that Twomey should have been
permitted to testify about industry customs and practices of
safety.
As to testimony about the OSHA regulations, the general
rule is that it is the judge's role, not a witness's, to instruct
the jury on the law. See Nieves-Villanueva v. Soto-Rivera, 133
F.3d 92, 99 (1st Cir. 1997). A district court has broad discretion
to exclude expert opinion evidence about the law that would impinge
on the roles of the judge and the jury. See N. Heel Corp. v. Compo
Indus., Inc., 851 F.2d 456, 468 (1st Cir. 1988). For this reason,
and to avoid jury confusion, the district court in this case acted
well within its discretion in excluding expert testimony about the
applicability of OSHA regulations to Main Street.
Pelletier cites cases in which experts were permitted to
testify about the law applicable to the case. In general, it can
be within the district court's discretion to admit or exclude
particular expert testimony, such that neither judgment will be
reversed on appeal. See Univ. of R.I. v. A.W. Chesterton Co., 2
F.3d 1200, 1218 (1st Cir. 1993). More importantly, the cases
Pelletier cites are inapposite because they involve situations in
which the proper interpretation of the law is itself a factual
issue in the case, as when the defendant claims that his
interpretation of the law was reasonable, even if incorrect.
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See, e.g., United States v. Garber, 607 F.2d 92, 96-98 (5th Cir.
1979) (en banc) (reversing the exclusion of expert testimony to
show that defendant reasonably believed no tax was due); see also
Gomez v. Rivera Rodriguez, 344 F.3d 103, 115, 119 (1st Cir. 2003)
(reversing the exclusion of testimony about legal advice given to
the defendant to show the defendant's motivation for terminating
plaintiffs' employment). In this case, Pelletier offered the
expert testimony to show what the regulations meant, not to show
what he thought they meant, and thus cases like Garber have no
application here.
The most difficult issue in this case is the limitation
of the testimony purportedly proffered as to industry custom and
practice. Pelletier is correct that in general, the customs and
practices of an industry are proper subjects for expert testimony.
See Levin v. Dalva Bros., 459 F.3d 68, 79 (1st Cir. 2006).
Pelletier is also correct that under Federal Rule of Evidence 703,
an expert may base his opinion on trial testimony or on information
conveyed to him prior to trial. See Almonte v. Nat'l Union Fire
Ins. Co., 787 F.2d 763, 770 (1st Cir. 1986). Thus, the fact that
Twomey "had never visited the Old Mill," as the district court
noted, would not alone be reason to exclude his testimony about
customs and practices.
The Federal Rules of Evidence, however, "do not afford
automatic entitlements to proponents of expert testimony." Univ.
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of R.I., 2 F.3d at 1218. At trial, Pelletier's counsel proffered
Twomey's testimony "as to safety practices at Main Street" and "on
the unsafe practices that he saw going on there." The district
court appears to have excluded the testimony not because Twomey
lacked personal knowledge per se, but because in the absence of a
personal inspection of the facilities or equipment at issue, Twomey
would have had insufficient information on which to base his
opinion. See Fed. R. Evid. 702 (requiring that expert testimony be
"based upon sufficient facts or data").
The district court's concern about the basis and content
of Twomey's testimony was warranted, particularly given that
Pelletier never clearly stated what customs and practices Twomey
would testify to. Pelletier failed to make any more specific offer
of proof. See Fed. R. Evid. 103(a)(2); see also Harrison v. Sears,
Roebuck & Co., 981 F.2d 25, 30 (1st Cir. 1992). Twomey's report
gave little indication that his opinion was based on general
industry customs and practices, focusing instead on Main Street's
safety policies and numerous regulations, codes, and standards. As
the district court noted, it gave Pelletier several different
opportunities to explain why Twomey's testimony was admissible.
Given the shifting explanations and the broad articulation of the
proffer, there was some reason to suspect that the "customs and
practices" referred to were merely the OSHA regulations, without
referring to them as such. We are unable to say that the district
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court abused its wide discretion in refusing to allow Twomey's
testimony as proffered.
In any event, if there was any error here, it did not
affect Pelletier's substantial rights. Because Twomey had no
personal knowledge about conditions at the old mill, his testimony
on customs and practices could only have gone toward establishing
the standard of care. The court did allow testimony about the
appropriate standard of care, and the evidence admitted, in the
form of applicable regulations and Main Street's safety policies
and past practices, was more than sufficient to establish the
standard of care. Pelletier makes no argument that the proffered
evidence of custom and practice would have established a higher
standard of care than that established by the remaining evidence.
The focus of the trial was not on the standard of care,
but rather on whether responsibility lay with Three D Rigging and
Pelletier himself. As the district court noted, the evidence
tended to show that "Main Street did not control the means or
method of work of [Three D Rigging] or its employees," and that "a
large oil spill on the floor . . . was an open and obvious danger."
Thus, the proffered testimony about industry practices was largely
immaterial.
III.
We find no abuse of discretion in the challenged
evidentiary rulings and no prejudice to Pelletier from those
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rulings. The judgment of the district court is affirmed. Costs
are awarded to the appellees.
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