Sunday, October 15, 2006

WDNY Daubert ruling

In Pless v. Cleveland Wrecking Co., 2006 WL 2690074 (W.D.N.Y. Sept. 18, 2006), Judge Schroeder held that workplace safety experts Ernest J. Gailor and Thomas A. Scime could opine that the alleged manufacture of a path would violate certain Industrial Code Regulations, but that they could not opine that the alleged violations (1) violated Labor Law section 241(6) or that such alleged violations "caused" the Plaintiff's injury. In a subsequent unpublished in limine ruling, Judge Schroeder further held that the liability experts could not opine that the alleged method of construction violated the subject Regulations -- granting Defendant's limited request for consideration of the previous ruling that the liability experts could testify concerning "industry customs." Indeed, Defendant argued that such "industry customs" are not codified Regulations such as the Industrial Code (citing Judge Hurd's Zollinger decision, which held that a jury did not need expert assistance because it could apply the OSHA regulations to the facts of the case).

Judge Schroeder's September 18 ruling also held that Donald Zimmer, a union bricklayer with 47 years of experience, could not testify that one of his former students would have completed the bricklaying apprenticeship or that she would have become a successful bricklayer. The court did hold, however, that the bricklaying expert could testify as to his observations of the Plaintiff while she was enrolled in the apprenticeship program for three weeks and testify as to his impressions of her candidacy.


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