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Rowan v. Sunflower Electric Power Corp.

United States District Court, D. Kansas

June 22, 2017

Michael Rowan, Plaintiff,
v.
Sunflower Electric Power Corporation and Mid-Kansas Electric Company, LLC; Defendants.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         On August 29, 2013, plaintiff sustained electrical injuries when he was installing a guard structure under an overhead power transmission line during a utility line construction project near Medicine Lodge, Kansas. At the time of his injury, plaintiff was employed by and performing work for his employer, Track Utilities, LLC (“Track”). Plaintiff asserts negligence claims against the owner of the transmission line, Mid-Kansas Electric Company, LLC, and the operator of the transmission line, Sunflower Electric Power Corporation. While plaintiff initially asserted negligence claims against the contractor responsible for the utility line construction project, Power Constructors, Inc. (“Power”), the court recently granted Power's motion for summary judgment after concluding that plaintiff's claims against Power were barred by the exclusive remedy provision of the Kansas Workers' Compensation Act.

         This matter is now before the court on the Utilities' motion to strike plaintiff's expert, Donald R. Johnson. Mr. Johnson is a licensed electrical engineer with more than thirty-five years of experience in the field of electric power distribution, including the construction and design of electric utility systems and overhead electric transmission line construction. Mr. Johnson is a member of the Institute of Electric and Electronic Engineers (IEEE) and is knowledgeable about National Electronic Safety Code (“NESC”) compliance. Plaintiff intends to call Mr. Johnson as a witness at trial primarily to establish the duty of care and to prove the breach of that duty by the Utilities. In resolving the Utilities' motion to exclude, the court assumes familiarity with the court's memorandum and order resolving the parties' motions for summary judgment and the parties' factual showing on summary judgment. As will be explained, the motion is granted in part and denied in part.

         Standard

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court instructed that district courts are to perform a “gatekeeping” role concerning the admission of expert testimony. See Id. at 589-93; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

         In order to determine that an expert's opinions are admissible, this court must undertake a two-part analysis: first, the court must determine that the witness is qualified by “knowledge, skill, experience, training, or education” to render the opinions; and second, the court must determine whether the witness's opinions are “reliable” under the principles set forth in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). The rejection of expert testimony is the exception rather than the rule. See Fed. R. Evid. 702 advisory committee notes. Under Rule 702, “[t]he proponent of expert testimony bears the burden of showing” that its proposed expert satisfies these requirements, and district courts have considerable latitude in determining whether the proponent has satisfied this burden. See Heer v. Costco Wholesale Corp., 589 Fed.Appx. 854, 861 (10th Cir. 2014) (quoting United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); Kumho Tire, 526 U.S. at 152).

         Applicable NESC Standards

         The parties in this case agree that the Utilities were required to conform to the standards set forth in the National Electrical Safety Code (NESC). Relying on a Kansas Administrative Regulation, plaintiff contends that the Utilities were required to follow the 1997 edition of the NESC. See K.A.R. § 82-12-2 (2009). The Utilities, in turn, contend that federal regulations require them to follow the most recent edition of the NESC, which is the 2012 edition. See 7 C.F.R. § 1724.50. The parties agree that, for purposes of this case, there are no substantive differences between the two editions of the NESC.

         Despite the fact that no meaningful distinction exists between the 1997 and 2012 editions of the NESC, Mr. Johnson repeatedly criticizes the Utilities in his report based on the Utilities' failure to “study” the 1997 edition; failure to maintain a copy of the 1997 edition in the offices of management personnel; failure to “look” at the 1997 edition; and failure to consider the 1997 edition to be applicable to the project. Mr. Johnson concludes that the Utilities had a “cavalier” attitude about the 1997 edition and ignored it at all times. The Utilities move to preclude Mr. Johnson from telling the jury that the 1997 edition of the NESC applies to this case and from suggesting to the jury that negligence can be found based solely on the Utilities' failure to adhere to the 1997 edition. The motion is granted.

         In light of the parties' agreement that there is no meaningful distinction between the two editions of the NESC, the court need not decide whether one edition applies over the other edition. Because there is no substantive difference, and because Mr. Johnson agrees that it is common practice in the industry for utilities to follow the most recent (2012) edition of the NESC, Mr. Johnson may not tell the jury that the Utilities' failure to adhere to the 1997 edition is pertinent in any respect. He is free to rely on the 1997 edition in connection with explaining to the jury the applicable standard of care or a particular safety requirement, but he may not suggest to the jury that the 1997 edition (as opposed to the 2012 edition) necessarily governs the Utilities or that the Utilities departed from the applicable standard of care based solely on their failure to adhere to the 1997 edition.

         Whether the Utilities Knew that Track was Working Under an Energized Line

         In Opinion B of his report, Mr. Johnson opines that the Utilities knew that Track was building guard structures under an energized line. The Utilities move to exclude this opinion on the grounds that it is based solely on the deposition testimony of Randall Miller, a Track employee, and is contradicted by other evidence in the record reflecting that the Utilities expected that the guard structures would be built after the scheduled outage. This opinion is excluded but not because it is contradicted by other evidence in the record. Rather, Mr. Johnson's opinion amounts to no more than his personal belief as to the weight of the ...


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