Giusto v. Int'l Paper Co.

• Citation: 571 F.Supp.3d 1346
• Decision Date: 23 November 2021
• Docket Number: Civil Action No. 1:19-cv-00646-SDG
• Parties: Nancy GIUSTO, individually and as surviving spouse, and Nancy Giusto, as Administratrix of The Estate of Michael Giusto, deceased, Plaintiffs, v. INTERNATIONAL PAPER COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

571 F.Supp.3d 1346

Nancy GIUSTO, individually and as surviving spouse, and Nancy Giusto, as Administratrix of The Estate of Michael Giusto, deceased, Plaintiffs,

v.INTERNATIONAL PAPER COMPANY, Defendant.

Civil Action No. 1:19-cv-00646-SDG

United States District Court, N.D. Georgia, Atlanta Division.

Signed November 23, 2021

Brian Colty Kaplan, E. Michael Moran, Peter A. Law, Law & Moran, Atlanta, GA, Christopher Adam Beecher, Jeffrey N. Powers, Powers Law Group, LLC, Macon, GA, for Plaintiffs.

E. Righton Johnson Lewis, Pamela Lawrence Ferrell, Derek Rajavuori, Butler Snow LLP, Atlanta, GA, Joseph F. Welborn, III, Butler Snow, LLP, Nashville, TN, Orlando R. Richmond, Sr., Pro Hac Vice, Butler Snow LLP, Ridgeland, MS, Paul V. Cassisa, Jr., Pro Hac Vice, Butler Snow LLP, Oxford, MS, for Defendant.

OPINION AND ORDER

Steven D. Grimberg, United States District Court Judge This matter is before the Court on Defendant's motion in limine [ECF 280]; Plaintiffs’ motion to exclude expert testimony [ECF 246]; Defendant's motion to limit expert testimony [ECF 243]; Defendant's objection to Plaintiffs’ supplemental expert affidavit [ECF 251]; and Plaintiffs’ oral renewed motion opposing Defendant's Notice for Apportionment [ECF 197], motion to strike [ECF 261], and motion in limine [ECF 278, Mot. 3] relating to Defendant's apportionment defense. After careful review and evaluation of the record and the parties’ arguments, the Court enters the following Order.

I. Background

The Court incorporates by reference the facts of this case as set forth in its June 3, 2021 Order.¹ On August 13, the Court ruled on IP's motion to exclude the opinions and testimony of Plaintiffs’ expert Frank Ferrell, Plaintiffs’ motion to exclude the opinions and testimony of IP's expert Zdenek Hejzlar, Ph.D, and various other motions.² After that, the parties filed a flurry of motions, including several motions in limine. On November 17, the Court heard oral argument on these motions³ and resolved many of them via bench rulings and a docket entry on Thursday, November 18. At that time, the Court took under advisement IP's motion in limine regarding the admissibility of various OSHA documents and the parties’ motions to exclude certain expert testimony.⁴ The Court also deferred ruling on Plaintiffs’ motion in limine, oral renewed motion, and motion to strike relating to IP's apportionment defense, until IP's November 22 deadline to file optional supplemental briefing addressing a recent Supreme Court of Georgia opinion on single-defendant apportionment.⁵ Now, the Court rules on those motions.

II. Discussion

A. IP's Motion in Limine to Exclude Documents from OSHA Investigation

On October 18, IP filed a separate motion in limine⁶ to address Plaintiff's Exhibits 69–71 (the OSHA Documents), documents emanating from the Occupational Safety and Health Administration's (OSHA) investigation of Mr. Giusto's injury, and the facts and events surrounding it. Plaintiffs opposed that motion in a November 1 brief,⁷ and IP responded on November 8.⁸

Relevant to the contested OSHA Documents, the following facts are undisputed. On March 12, 2018, Michael Giusto, the decedent, fell at the Flint River Mill (the Mill) and sustained injuries at least consistent with thermal burns. He ultimately died on March 25, 2018. On March 26, the day after Mr. Giusto died and two weeks after his fall, an unknown OSHA investigator inspected the Mill.⁹ Weeks later on May 1, 2018, following reassignment of the investigation for reasons unknown to the parties, a new, also unidentified OSHA investigator assumed control of the investigation.¹⁰ Nobody witnessed Mr. Giusto's fall.¹¹ And because Mr. Giusto died before the investigation began, neither unidentified OSHA investigator could have spoken to him. OSHA issued two citations as part of its investigation of IP, and IP and OSHA agreed to settle without any admission of fault¹² —IP paid the penalty for one citation, and OSHA dropped the other citation.¹³ Plaintiffs seek to admit at trial Plaintiffs’ Exhibits 69–71, the OSHA Documents, which contain findings from that investigation.

In its motion in limine and during the pretrial conference, IP provided a helpful framework for analyzing the OSHA Documents, which the Court adopts for purposes of this Order. The OSHA Documents include:

• Plaintiffs’ Exhibits 69 and 70, which each include two items—

1. The "Violation Worksheets," which comprise the first two pages of Exhibits 69 and 70 and include OSHA's proposed citations to IP for violation of 29 C.F.R. § 1910.22(a)(3) and 29 C.F.R. § 1910.22(a)(d)(2)¹⁴ and violation descriptions that comprise the alleged conduct constituting the offense; and

2. The "Instance Descriptions," which are essentially the same in both Exhibits, and which include:

a) Information from witnesses who may or will testify at trial; and

b) Information from witnesses whose identities are unknown to the parties; and

• Plaintiffs’ Exhibit 71, a memorialization of statements from Ervin Chase (the Chase Interview).

1. Legal Standard

With this framework for evaluating the OSHA Documents in mind, the Court next acknowledges that the parties agree on at least one more thing: the Court should decide the admissibility of the OSHA Documents after careful consideration and application of Fed. R. Evid. 803(8) and two cases— Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) and Crawford v. ITW Food Equipment Group , LLC, 977 F.3d 1331, 1337 (11th Cir. 2020) —and their progeny.

Rule 803(8) contains a hearsay exception for public records. According to that rule:

A record or statement of a public office is admissible if: (A) it sets out: (i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Fed. R. Evid. 803(8).

The parties do not dispute that Rule 803(8)(A) controls, and this Circuit's law directs that an OSHA investigative report may be "properly admitted under the public records exception to the general bar on hearsay." Crawford , 977 F.3d at 1348 ("OSHA reports fall squarely within the public records exception for ‘factual findings from a legally authorized investigation.’ ") (quoting Fed. R. Evid. 803(c) ). Instead, the parties dispute the trustworthiness of the OSHA Documents. To determine the trustworthiness of an OSHA report, courts must "look at a nonexhaustive list including: the timeliness of the investigation, the investigator's skill/experience, whether a hearing was held, and possible bias." Id. at 1343 (citing Beech Aircraft , 488 U.S. at 167 n.11, 109 S.Ct. 439 ). "[T]he burden of demonstrating a lack of trustworthiness is on the party opposing admission." Crawford , 977 F.3d at 1347 (citation omitted).

But that is only one step in the 803(8) analysis; the Eleventh Circuit also counsels that a district court should consider whether the OSHA materials contain factual or legal conclusions and whether they should be excluded under any other rule of evidence, including Fed. R. Evid. 403. Hines v. Brandon Steel Decks, Inc. , 886 F.2d 299, 303–04 (11th Cir. 1989) (interpreting Beech Aircraft ).

2. Analysis

Regarding the trustworthiness of the OSHA Documents, the parties disagree on four broad points, to which all arguments they make are related. IP argues that the OSHA Documents are untrustworthy because: (1) they contain inadmissible legal conclusions; (2) the OSHA investigators lacked personal knowledge of the underlying issues since they reported only a "mere collection of statements from" individuals who themselves did not witness Mr. Giusto's fall; (3) IP had no opportunity to cross-examine the investigator at a hearing, the investigators’ skill and experience are unknown, and the OSHA Documents are a "chaotic mess ... without any indication of what they are or who prepared them"; and (4) Crawford is factually distinguishable.¹⁵

Plaintiffs respond that the OSHA Documents—particularly the Violation Worksheets—contain factual findings, not legal conclusions; the OSHA investigation was comprehensive and is reliable; the lack of opportunity to cross-examine the OSHA investigators is not dispositive as to trustworthiness; any qualm about the unidentified OSHA investigators’ skill or experience is speculative; and Crawford —as well as this Court's previous holding on summary judgment¹⁶ —mandate admission.¹⁷

i. Factual Statements or Legal Conclusions

The parties dispute the extent to which certain items in the OSHA Documents are inadmissible legal conclusions. Because the Eleventh Circuit recognizes that the "amorphous line between ‘factual’ and ‘legal’ conclusions may obscure a practical analysis under this rubric," Hines , 886 F.2d at 303, and finding that the standard trustworthiness analysis and Rule 403 provides sufficient basis for deciding the admissibility of the OSHA Documents, the Court dispenses with any analysis of what sorts of conclusions these OSHA records contain. As outlined below, IP has met its burden to exclude the OSHA Documents as lacking the requisite trustworthiness under Rules 803(8) and 403 without a line-by-line analysis, and the fact that such an analysis would otherwise be necessary counsels against their admission at trial.

ii. Hearsay

The OSHA investigators relied on others’ accounts of what happened the day Mr. Giusto fell at the Mill. No party asserts that anyone witnessed his fall or that the OSHA investigators spoke to Mr. Giusto about the accident. Put differently, the OSHA investigators only could have learned about how Mr. Giusto fell from somebody's retelling of it. Plaintiffs concede that the OSHA investigators relied on statements from IP employees...