The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
ORDER ON PLAINTIFF'S MOTION IN LIMINE
This Order addresses Plaintiff Lamar Freeman's Motion in Limine, filed May 25, 2007. Plaintiff's motion is broken into seven paragraphs, each of which raises a different evidentiary point.
1. To Exclude Deposition of Dr. John Lochemes
Plaintiff first seeks to exclude the entire deposition of Dr. Lochemes as hearsay . Defendant took the deposition of Dr. Lochemes for trial purposes by agreement of the parties on June 15, 2005. Plaintiff's cross examination of Dr. Lochemes was interrupted when the doctor had to leave to attend to waiting medical patients. According to the Defendant the deposition transcript reflects that both Dr. Lochemes and the Defendant's attorney agreed the deposition could be reconvened on July 11, 2005. Plaintiff also incorporated by reference his previously filed Motion in Limine concerning this matter. The Court in its April 21, 2006 order concluded that the Defendant should not be obligated to bear the cost of producing Dr. Lochemes so that Plaintiff's counsel could finish deposing him. The Court noted that Dr. Lochemes was one of Plaintiff's treating physicians. The Court declined to shift the discovery cost to the Defendant. Further, the Defendant in its response states that the Plaintiff has made no further effort or attempt to depose Dr. Lochemes at any time since the Court's Order of April 21, 2006. Under the circumstances the deposition is clearly not hearsay. For the reasons stated herein and in the Defendant's response, the Plaintiff's first request to exclude the deposition testimony of Dr. Lochemes is DENIED.
2. To Exclude Evidence of OSHA violations and References to Negligence or Fault
Plaintiff objects to many of the opinions and statements of Defendant's experts which were included in written reports produced within the past few weeks. First, Plaintiff objects to Defendant's experts opining that the Plaintiff, Mr. Freeman violated certain OSHA regulations, in particular 29 C.F.R. 1910.178, and that acts and omissions of Nucor and Plaintiff constitute violations of law, negligence and fault. Plaintiff further argues that "it is the employer, not the employee, who violates the regulations." More particularly, Plaintiff contends that Robertson and Johnson should be prohibited from testifying: "(a) that Plaintiff's conduct constituted negligence, fault or an OSHA violation; or, (b) that Nucor's conduct constituted negligence, fault, or an OSHA violation." Plaintiff makes the point that he "has no objection to the parties' experts testifying whether the design was defective, whether the forklift was in defective condition or unreasonably dangerous, whether there was negligence on the part of the Defendant in the design of the forklift, and whether Nucor's maintenance of the forklift was negligent."
The record reflects that Plaintiff was on notice of Defendant's contentions about the applicability of OSHA regulations. Of course the Court will take judicial notice of any laws or regulations which may be relevant to the resolution of the trial issues. Certain OSHA regulations pertain to the employer's obligation to properly train certain of its employees. Defendant contends that Mr. Freeman was not properly trained in the handling of forklift. It is clear that OSHA standards and regulations may be relevant in product liability actions where the fault of the employer is an issue. And some OSHA provisions appear to be relevant to the employee's (Mr. Freeman's) fault.
A preliminary issue must be considered. Defendant concedes that Nucor's conduct cannot be the subject of an apportionment of fault under the law applicable in Arkansas at the time of this particular accident. However, Defendant contends that Nucor's acts and omissions constitute an intervening cause of the accident, independent of the allegations against Mr. Freeman.
Plaintiff contends that Defendant's position that Nucor's fault and negligence was an intervening cause is inconsistent with its further contention that Plaintiff's negligence and fault caused or contributed to his injuries. The Court rules as a matter of law that Defendants may take such inconsistent positions. The Defendant is not prohibited from offering proof from which the jury might find that the fault of the employer (Nucor) was the sole cause of the accident, but failing in that contention, may also assert the contributory fault of the Plaintiff. As stated in Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 414, 947 S.W. 2d 780 (1997):
Proximate cause is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Arkansas is a comparative fault state, as provided in Ark. Code Ann. § 16-64-122 (Supp.1995), and this case proceeded under that theory. Under the comparative fault statute, there must be a determination of proximate cause before any fault can be assessed against a claiming party. Proximate cause becomes a question of law only if reasonable minds could not differ. Proximate cause is defined as "that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." (Emphasis supplied.)
If the jury determines that Nucor's fault caused the accident completely independent of any conduct on the party of Caterpillar, then there could be no fault charged to the Defendant. If, on the other hand, the jury rejects Caterpillar's intervening cause theory, then the Plaintiff's comparative fault must be assessed.
Nucor's failure to comply with OSHA regulations requiring it to properly train its employees is relevant only to prove Caterpillar's intervening cause theory. As a general proposition, to qualify as an independent intervening cause, "the occurrence of the subsequent act or event must not have been reasonably foreseeable or capable of being anticipated by the original wrongdoer, or the intervening cause must have produced a result that could not have been reasonably anticipated." Am Jur., Negligence, § 584 (citations omitted). Additionally, case law suggests that "where there are both a design defect and misuse of the product, each of which contribute to an accident, the misuse does not become an intervening cause if the misuse was foreseeable." Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir. 1981)(applying Missouri law). Thus, the question arises, was it reasonably foreseeable that Nucor would not follow OSHA regulations with regard to the training of its employees? At this point, the Court assumes that the jury will have to answer that question.
The Court agrees with Plaintiff that the Defendant's engineer experts are not experts in the law. The Court will declare the law to the jury, including any pertinent OSHA regulations or rules. However, Defendant's witnesses may then point out the facts assumed by them which might show a failure to comply with the particular OSHA regulations. The Defendant's experts will not be permitted to testify that certain conduct on the ...