Dilts v. United Group Services, LLC, 091712 FED6, 10-5271

Docket Nº:10-5271, 10-5540
Opinion Judge:CLAY, Circuit Judge.
Party Name:TINNA DILTS, et al., Plaintiffs-Appellants, v. UNITED GROUP SERVICES, LLC, et al., Defendants-Appellees.
Judge Panel:BEFORE: CLAY, GIBBONS, and WHITE, Circuit Judges. JULIA SMITH GIBBONS, concurring. HELENE N. WHITE, Circuit Judge, dissenting in part.
Case Date:September 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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TINNA DILTS, et al., Plaintiffs-Appellants,

v.

UNITED GROUP SERVICES, LLC, et al., Defendants-Appellees.

Nos. 10-5271, 10-5540

United States Court of Appeals, Sixth Circuit

September 17, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: CLAY, GIBBONS, and WHITE, Circuit Judges.

CLAY, Circuit Judge.

Tinna Dilts, as ancillary administratrix of the Estate of Rickie Dilts, and Sandi Neace, as administratrix of the Estate of Matthew Collins, brought a wrongful death action against Defendants Maxim Crane Works, L.P., United Group Services, LLC, North American Stainless Steel, and Siemens Industry, Inc. The district court granted summary judgment to all three Defendants. Dilts argues on appeal that the district court erred in excluding the testimony of his expert witness and in granting summary judgment (Neace's claims were settled and dismissed in 2008). For the reasons set forth below, we REVERSE the district court's decision to exclude Plaintiff's expert opinion, REVERSE the district court's order granting summary judgment to Maxim, and AFFIRM the district court's order granting summary judgment to Siemens Industry, Inc. and North American Stainless.

BACKGROUND

A. Factual Background

Rickie Dilts ("Dilts") and Matthew Collins ("Collins") were employed as ironworkers by United Group Services, Inc. ("UGS"). On July 28, 2006, they were assigned to work at North American Stainless ("NAS") in Carroll County, Kentucky, to reset the roof panel on a structure known as the "doghouse."1 There were a number of steps involved in the process of assembling the roof panel. A crew of UGS employers worked on the ground to prepare the panels to be lifted by a crane. Each panel comprising the doghouse structure weighed between 1, 000 and 6, 000 pounds. The grounds crew then communicated either by hand signal or radio to the crane operator to lift the panels. The crane operator continued to follow the instructions given by a UGS employee as to the proper placement of the panel. Once the UGS employee determined the location for the panel, an employee would release the panel from the crane's rigging while another would weld the panel into its permanent location on the wall and the I-beam.

On July 28, Dilts and Collins were responsible for releasing the rigging from the crane to set the panel on top of the doghouse. They were working approximately eighty feet from the ground wearing only a safety harness and lanyard. Neither man was physically "tied off" or secured to the doghouse. Dilts communicated via radio to Travis Gunn ("Gunn"), the crane operator who worked for Maxim Crane Services L.P ("Maxim"), with instructions on where to move the panel. Gunn was working "in the blind, " as he was unable to see where Dilts and Collins were standing or where the panel was being placed. Dilts instructed Gunn to first lower the panel and then lower the crane so that the panel could be disconnected from the crane's rigging and then properly secured between the I-beam and the wall. At his deposition, Gunn stated that Dilts said over the radio to "cable down, cable down, stop and hold that." Gunn then recalls waiting for Dilts to signal to "boom up and swing away" the crane. Gunn followed the command to cable down, but no further command was given and, according to Gunn, no additional movement of the crane was made. Soon after, the panel on which Dilts and Collins were standing fell to the floor, causing both men to fall eighty feet to their deaths.

The parties dispute how the panel fell. There were a number of witnesses identified by both Plaintiffs and Defendants who testified to both the events preceding and following the panel's descent, but none of the witnesses observed the actual accident. Roger Perry ("Perry") and Lori Day ("Day"), both employed by James Welding Company, were working approximately twenty feet from Dilts and Collins. Day and Perry were responsible for welding the panels on the doghouse. Day observed Dilts and Collins moving the panel and then setting it into place between the I-beam and the wall. Day stated at her deposition that she saw visible slack in the crane's rigging just prior to Dilts' death. The last thing she observed was Collins loosening the pin to separate the shackle from the panel to take the rigging off his side of the panel. Although Day noticed that Collins had his strap completely separated from the panel, she could not tell whether Dilts had done the same to his side. She testified that she turned around, put her hood down, and started welding a panel held by Perry. Day stated that shortly after she heard a very loud noise, turned around, and realized that Dilts and Collins had fallen to the ground and that the panel also fell. She noticed that the crane's straps were hanging straight down and motionless, and a pin was missing from one shackle.

Perry corroborated Day's testimony, stating at his deposition that he also observed Dilts and Collins working on the doghouse installing a panel. According to Perry, his last visual memory of Dilts and Collins was the two of them trying to put the panel into the I-beam. He then turned around with his back facing Collins and Dilts. Perry testified that the accident occurred shortly after and when he turned around to see what happened, he noticed that only one end of the panel was properly placed. Perry also corroborated Day's testimony by stating that he also observed that one of the pins on the shackle was inserted and screwed in properly on the strap but the other shackle was hanging without a pin.

Juan Corrales ("Corrales"), a welder for UGS, was also working on the doghouse in a man basket. He testified at his deposition that he did not see the accident but heard a very loud noise and felt a rush of air move past him in his basket. He immediately turned around and noticed that the panel and the two men had fallen to the ground. According to Corrales, shortly after the accident he looked up and noticed that the rigging and the shackles were hanging between the panels and a pin was missing from one of the shackles after the panel fell.

Plaintiffs hired Stuart Nightenhelser, an accident reconstructionist for Wolfe Technical Services, as their expert witness. Plaintiffs retained Nightenhelser to examine and analyze physical and photographic evidence of the accident and to provide expert analysis and opinion as to the cause of the accident. Nightenhelser inspected the crane's straps and panel at the worksite and also viewed photographs to compare the worksite before and after the accident. In his report, Nightenhelser concluded that the panel "became dislodged by [the] cabling up action of the crane, " which lifted the panel out of its position and resulted in the rotation of the panel, damage to the support structures, and the crane's subsequent release of the panel to the floor.

B. Procedural History

On May 7, 2007, Tinna Dilts and Sandi Neace filed suit in the Circuit Court of Carroll County, Kentucky. The complaint alleged that the construction-accident deaths of Rickie Dilts and Matthew Collins were due to negligence on the part of NAS, the owner of the worksite; the general contractor on the project;Voest-Alpine Industries, Inc. ("VAII") (which was later acquired by Siemens Energy and Automation ("Siemens")); VAII's installation subcontractor and Collins and Dilts employer, UGS; and UGS' crane subcontractor Maxim. UGS removed the matter to the U.S. District Court for the Eastern District of Kentucky pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction.

Defendant UGS filed a motion for summary judgment on December 6, 2007. The district court granted the motion in part on September 22, 2008, and dismissed Plaintiffs' negligence claims against UGS on the grounds that Plaintiffs received workers' compensation death benefits from UGS' insurance carrier and thus were barred from bringing any tort claim against UGS under the exclusivity provision of the Kentucky Workers' Compensation Act, KRS 342.0011, et seq.

On July 9, 2009, Defendant Siemens also filed a motion for summary judgment against Plaintiffs, arguing that Siemens is a contractor as defined under Kentucky's Worker Compensation Statutes and thereby immune from tort liability for claims brought by its subcontractors' employees. NAS filed a separate motion for summary judgment on the remaining claims. The district court granted the motions for summary judgment on February 5, 2010.

Defendant Maxim also moved for summary judgment, arguing that the company should not be vicariously liable for the acts of its crane operator. The district court denied Maxim's motion on March 25, 2009. Maxim then filed a motion in limine to exclude the testimony of Plaintiffs' expert witness Nightenhelser on July 23, 2009 and also filed a second motion for summary judgment. Maxim moved for a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to determine the admissibility of Nightenhelser's expert testimony. On February 25, 2010, the district court granted Maxim's motion for summary judgment, concluding that Nightenhelser's expert testimony was inadmissible because Nightenhelser failed to use valid and reliable principles to explain how the crane moved the panel out of position causing the death of Dilts and Collins. The district court also granted Maxim's motion for summary judgment on both the common-law negligence and negligence per se claims. Plaintiffs timely appealed.

ANALYSIS

I. Admissibility of Expert Witness Testimony

A. Standard of Review

We review the exclusion of expert testimony for an abuse of discretion. United States v. White, 492 F.3d 380...

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