Court Rejects Accident Reconstruction Expert Witness’ Attempt to Springboard OSHA Regulations Outside of the Work Environment
Posted on December 2, 2024 by Expert Witness Profiler
On September 19th, 2021, Co-Plaintiff Cándida Cabrera visited the restaurant called Romano’s Macaroni Grill, located at Las Catalinas Mall in Caguas, Puerto Rico. At a certain point, Co-Plaintiff Cándida Cabrera was in the process of exiting the seating booth, and one of her feet slightly tripped on one of the spikes under the table. Given the elevation of the surface (step), Cabrera fell off the booth as she was trying to step outside, suffering the grave damages alleged in this complaint.
Plaintiffs Cándida Cabrera Escobar and her husband Osvaldo Cabrera sought to recover damages for the alleged negligence of Co-Defendants International Restaurant Services, Inc., owner and operator of a franchise which runs “Romano’s Macaroni Grill,” and its insurer, American International Insurance Company of Puerto Rico.
Defendants filed a motion in limine to preclude the testimony of Plaintiffs’ expert, engineer Otto González Blanco.
In their motion in limine to exclude Plaintiffs’ expert, Defendants argued that González’s testimony should be excluded because he did not base his opinion or testimony in appropriate scientific data, facts, or analysis and further that he did not review or consider all the evidence available in the case.
Accident Reconstruction Expert Witness
Otto González Blanco received training in accident reconstruction for fall and traffic accidents and has served as an expert in hundreds of fall cases. He has been working as an engineer since 1977. From 2008 to 2012, he enrolled in the Public Safety Program at University of North Florida, Jacksonville to become an expert in the field of accident reconstruction.
Discussion by the Court
Defendants sought to exclude González’s testimony pursuant to Federal Rules of Evidence 702 and 703, as well as pursuant to Daubert and its progeny, on grounds that it is speculative, unreliable, and insufficiently grounded in appropriate scientific data, facts, or analyses. Defendants discussed González’s failure to review all the evidence of record, including architect Arch. Otheguy report and statement under penalty of perjury, as well as Cabrera’s deposition testimony. Specifically, Defendants argued that González’s opinions are based on “speculation and conjecture” because he did not review the aforementioned information.
Knowledge of the circumstances of the fall is relevant to González’s ability to offer his expert opinion
Defendants’ claim that González has “no knowledge of how the accident occurred according to Plaintiff Cabrera” because González did not read her deposition testimony, though relevant for vigorous cross examination, is not in and of itself sufficient to strike him as an expert.
The Court held that the knowledge of Cabrera’s account of how she fell can come from more than one source, although González should have clearly spelled out the source in his report or deposition testimony.
González’s unawareness or, at a minimum, lack of specificity in his report as to which foot of Cabrera got tangled with the table and where exactly her other foot landed leaves much to be desired for purposes of an accident reconstructionist. The Court held that it was not until González submitted a statement under penalty of perjury in support of an opposition to a motion for summary judgment that the details of the fall seemed to perfectly align with the details of Cabrera’s deposition testimony.
Nevertheless, in writing his report, it is clear that González was made aware of certain facts, data, and allegations in the case. Further, Eng. González visited the restaurant facilities personally on September 22, 2023, to take measurements and observe the scene of the accident.
Therefore, the Court refused to exclude González’s expert opinion on foundational grounds.
González need not have discussed every claim in Plaintiffs’ complaint in order to testify as to how the accident occurred
Defendants also argued that González has “no experience or training in the design of restaurant interiors,” and while he was involved in structural and site design of restaurants in the past, he has not “taken part in any such designs during the last fifteen (15) years.” The Court held that González’s educational background and professional experience qualify him to render an opinion in this case as an accident reconstructionist.
Defendants also argued that González’s report did not address every claim in Plaintiffs’ complaint; specifically, his report did not state “any opinion relative to the platform and/or the height of the same; the recessed lighting and/or lack of adequate warnings” and whether “these factored into Cabrera’s fall.”
The Court held that González does discuss both the platform height and the lack of warnings of the height in his report. It is true that González did not address Plaintiffs’ claim as to dimmed or recessed lighting; however, González need not have discussed every claim in Plaintiffs’ complaint in order to testify as to how the accident occurred.
González points to no codes, regulations or restaurant industry standards to support his report conclusions
González points to no codes, regulations or restaurant industry standards to support his report conclusions that tripod style tables are unacceptable for restaurant booths, that post square table bases should be used instead, and that platforms where booths rest must rise at least 4 inches from the floor. He also invoked OSHA safety standards which are applicable to workers, not guests such as Cabrera.
The only hint left of scientific reliability to a standard is González’s references in his report to two American National Standards Institute (ANSI) codes to justify the placement of a tape on a platform’s edge, the existence of which Cabrera admitted in her deposition she was aware as she stepped into the booth without any difficulties. However, as previously discussed, despite given multiple opportunities to explain whether, why or how those codes made the absence of a visual marking on the booth platform’s edge an unreasonably dangerous condition for guests at Romano’s Macaroni Grill, at his deposition González insisted that he did not come to testify about deviations from codes and regulations, but instead about deviations from the original design.
There is a clear contradiction between González’s deposition testimony and the statement under penalty of perjury submitted to defeat Defendants’ motion for summary judgment
In support of Plaintiffs’ opposition to Defendants’ motion for summary judgment, however, González sings a different tune from the one heard at the deposition and now suddenly feels compelled to make statements in his statement under penalty of perjury about deviations from codes and regulations.
Basically, there is a clear contradiction between González’s deposition testimony and the statement under penalty of perjury submitted to defeat Defendants’ motion for summary judgment. In the statement under penalty of perjury, González opined that the ANSI code was a standard “that was violated by the restaurant.” However, as previously explained in detail, González’s prior deposition testimony strayed far away from ANSI regulations or standards. This is in stark contrast to his statement under penalty of perjury, where he makes it clear that Defendants violated the ANSI standard.
Second, Defendants objected to several of González’s statements under penalty of perjury as they contain new information not included in his expert report or deposition. In his expert report, González does not specify or discuss the specifics of Cabrera’s fall but in his statement under penalty of perjury, González specifies exactly how Cabrera fell.
Therefore, if while under oath at his deposition González adopted his report as containing the entirety of his opinions, and his report he says that “her feet” (in plural) slightly tripped on one of the spikes under the table, he cannot now say that Cabrera’s right foot (in singular) got tangled with one of the spikes.
Analysis
The Court held that González does not cite any standards as to the type of table to be used or the required height of the platform where the booth rests. His attempt to springboard OSHA regulations outside of the work environment and impose them on restaurant guests is not admissible, particularly as there is not even evidence on the record that waiters at Romano’s Macaroni Grill actually go in and out of restaurant booths to do their jobs (as opposed to simply standing in front of the booth to take an order).
He was unable to answer with specificity questions at his deposition about the ANSI codes cited in his report and the OSHA standards. His assertions regarding said standards in his statement under penalty of perjury issued post deposition have been stricken. González cannot testify about recessed lighting because he is completely silent about that topic in his expert report.
Moreover, he – who has been retained as an accident reconstructionist – will not be able to even say what Cabrera has said under oath, namely that it was her right foot, not both of her feet, which allegedly got tangled with a leg of the table. Under these circumstances, it cannot be said that González’s conclusions were made “in a scientifically sound and methodologically reliable fashion.”
Held
The Court granted Defendants’ motion in limine to strike Otto González Blanco’s testimony.
Key Takeaway:
- González’s attempt to springboard OSHA regulations outside of the work environment and impose them on restaurant guests is not admissible, particularly as there is not even evidence on the record that waiters at Romano’s Macaroni Grill actually go in and out of restaurant booths to do their jobs (as opposed to simply standing in front of the booth to take an order).
- González points to no codes, regulations or restaurant industry standards to support his report conclusions that tripod style tables are unacceptable for restaurant booths, that post square table bases should be used instead, and that platforms where booths rest must rise at least 4 inches from the floor.
Case Details:
| Case Caption: | Cabrera Et Al V. International Restaurant Services, Inc. Et Al |
| Docket Number: | 3:22cv1449 |
| Court: | United States District Court, Puerto Rico |
| Order Date: | November 27, 2024 |
