United States District Court, District of Wyoming
SHARON COFFEY, as the Wrongful Death Representative of Thomas Wayne Coffey, deceased, Plaintiff,
CHEVRON U.S.A. INC. a/k/a Chevron North American Exploration and Production Co., and/or Chevron U.S.A. Production Co., Defendant.
ORDER ON MOTION TO STIKE EXPERT TESTIMONY
L. Carman, U.S. Magistrate Judge
filed its Motion to Strike Opinions of Plaintiff's
Expert Witness Edward Ziegler, P.E. C.S.P. on December
2, 2016 [Doc 33]. The Plaintiff filed her response on
December 16, 2016 [Doc 37]. After review of the pleadings in
this matter the Court has determined that oral argument or
further information is not necessary to the decision on this
motion. The motion is granted in part and denied in part.
does not seek to strike Mr. Ziegler as an expert witness in
all aspects, but rather focus on three areas in which it
believes his proffered opinions are not admissible pursuant
to Federal Rule of Evidence 702 and the doctrine as
originally set forth in Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Mr.
Ziegler is a registered professional engineer and a certified
safety professional who was timely designated by Plaintiff in
this matter to testify generally as to matters of workplace
safety at the Defendant's Glencoe Junction Sulfur
Terminal as relating to the fall and death of Thomas Wayne
Coffey on February 26, 2014. Mr. Coffey was employed as a
truck driver for Bonneville Transloaders, Inc.
("BTI"), and his duties included the loading of
molten sulfur at the Defendant's facility. The process of
loading the sulfur involved working at an elevated location
on the top of the BTI truck and trailer being operated by Mr.
Coffey. The loading facility was equipped with a safety
railing/cage which was lowered over the top of the trailer in
the area the BTI truck drivers were required to work in the
process of loading the molten sulphur. The Plaintiff alleges
that the safety cage was dangerous and defective, in part
arising from the fact that the lower railing had been removed
at some point in time which allowed a gap through which Mr.
Coffey fell to his death. Plaintiff further alleges that
Chevron failed to provide other fall protection to the truck
drivers using the facility. Mr. Ziegler's expert
designation addressed these issues.
Defendant's motion is directed to three of Mr.
Ziegler's statement that Defendant's post-accident
measures were not remedial measures. At paragraph 1.25 of Mr.
Ziegler's report he stated:
The changed elevated loading station and adding other safety
procedures (such as fall protection systems) and equipment
after the incident was not a remedial measure; but was simply
what Chevron should and could have easily accomplished
earlier to make its workplace proper and safe.
Ziegler's opinion expressed in discovery that
Defendant's personnel, or a contractor hired by
Defendant, removed the third rail from the safety cage.
Ziegler opined that the lack of documents indicates that
Defendant failed to follow and document it safety management
system and in Defendant's opinion, Mr. Ziegler inferred
that Defendant withheld, hid or destroyed such documents.
Rule of Evidence 702 and Daubert
Defendant seeks to invoke this Court's
"gate-keeping" function in regard to specific areas
of Mr. Zeigler's expected testimony. Rule 702 states:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) The expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence ...