United States District Court, D. Kansas
HAROLD T. FORTNER, Plaintiff,
JACK G. HANSEN, Defendant.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
Harold Fortner, a contract carpenter, brings this personal
injury claim against defendant Jack Hansen, his contract
employer. Defendant retained Gary Buffington as an expert
witness in construction safety and health. In his expert
report, Mr. Buffington offers a number of opinions that
plaintiff seeks to exclude. This matter is before the court
on plaintiff's Motion to Exclude Various Opinions of
Defendant's Expert Witness Gary L. Buffington. (Doc. 21.)
hired plaintiff to rebuild a room in defendant's
house. Plaintiff worked with Hector Vega and
former plaintiff John Howland. On November 5, 2015, plaintiff
and Howland decided to cover an exposed section of the
second-story room with a tarp to prevent water damage from a
forecasted storm. Both stood on scaffolding to hang the tarp.
Defendant contests plaintiff's version of the subsequent
events. Plaintiff asserts that while he and Howland were on
the scaffolding, defendant stepped onto the scaffolding from
the second-story room. Defendant panicked when the
scaffolding flexed, and he jumped back into the room.
According to plaintiff, this caused the scaffolding to fall
over, and plaintiff and Howland fell, resulting in their
Buffington, relying on defendant's version of the facts,
provided a number of opinions that plaintiff seeks to
exclude. These are:
1. [Defendant] Hansen was not reckless and negligent when he
stepped onto the scaffolding prior to the accident.
2. Hansen did not cause or contribute in any manner to
3. [Plaintiff] Fortner's conduct was egregious and
demonstrated a willful, reckless disregard of the
Occupational Safety and Health Act (OSHA) and American
National Standards Institute (ANSI) safety standards and the
safety of himself & his workers on this site.
4. [I]t was just a matter of time before an employee would be
injured or killed.
5. It was Fortner's responsibility to provide
workers' compensation insurance.
6. Fortner is the employer and supervisor, and Howland is
7. Fortner violated OSHA standards.
argues the court should exclude: (1) opinions 1-3 as
inadmissible legal conclusions; (2) opinion 4 as a subjective
belief based on unsupported speculation; (3) opinions 5 and 7
as they require additional factual findings; and (4) opinion
6 as a mixed question of fact and law.
response, defendant argues the opinions are admissible
because: (1) opinions 1-3 are based on evidence that leads to
a legal conclusion; (2) opinion 4 expresses Mr.
Buffington's dissatisfaction with the number of safety
violations; (3) opinions 5 and 7 are either supported by
enough factual information or information supporting the
opinions may be found upon further discovery; and (4) opinion
6 is supported by the deposition transcripts. Defendant
argues plaintiff's motion should be denied for two
additional reasons. First, plaintiff untimely filed his
motion because he violated the court's Scheduling Order
by failing to “[s]erve any objections to [expert]
disclosures . . . within 14 ...