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Fortner v. Hansen

United States District Court, D. Kansas

October 30, 2017

HAROLD T. FORTNER, Plaintiff,
v.
JACK G. HANSEN, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.)

         I. Factual Background

         Defendant hired plaintiff to rebuild a room in defendant's house.[1] 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 injuries.

         Mr. 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 subject accident.
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 Fortner's employee.
7. Fortner violated OSHA standards.

         Plaintiff 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.

         In his 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 ...


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