Safety Expert Witness’ Knowledge and Application of ASTM Standards is Admissible
Posted on January 7, 2025 by Expert Witness Profiler
This is a maritime personal injury case. Plaintiff Elvis Lopez alleged that on August 2, 2023, he was offloading cargo from the M/V Harvey Intervention in the scope of his employment with Harvey Gulf. While unloading the cargo, he tripped on the grating of the vessel’s stairs, which he alleges was “unstable because it was not braced and secured.” Lopez injured his knee, back, and neck in the fall. Harvey Gulf brought him to their company doctor, who performed surgery on the torn medial meniscus in his right knee.
Moreover, Lopez alleged that he complained of further pain in his neck and back, but that Harvey Gulf did not arrange for him to undergo MRIs of those areas. According to Lopez, Harvey Gulf released him to return to work too soon, and without obtaining a fit for duty release from the doctor. Lopez stated three causes of action in this case: (1) Jones Act negligence; and (2) general maritime negligence and unseaworthiness and (3) a claim for maintenance and cure.
Harvey Gulf moved to exclude the testimony of Lopez’s safety expert, Robert Borison. Borison provided a report in which he offered two opinions. First, he opined that Harvey Gulf allowed others to improperly install the fiberglass stair grating which Lopez tripped on. Specifically, Borsion opined that the installation of the grating did not meet American Society for Testing and Materials (“ASTM”) safety standards because the edges, where two panels of grating met, were not properly supported or fastened together. Second, Borison opined that Harvey Gulf failed to properly inspect the grating after its installation. He avers that testimony suggests that the grating moved or deflected when walked on, which should have put Harvey Gulf on notice that it was unstable and a tripping hazard.
Safety Expert Witness
Robert E. Borison possesses over 50 years of safety experience in industries related to the exploration, production, and transport of oil and gas, as well as the marine, general, and commercial sectors. His expertise encompasses safety issues across various settings, including production platforms, barges, structural and fabrication yards, as well as vessels/boats, commercial and industrial buildings, and building projects. Borison obtained his degree in Business Administration from Louisiana State University. He currently serves as the President of Total Safety Services, Inc.
Discussion by the Court
To begin with, Harvey Gulf avers that Borison’s testimony should be excluded as it will not help the jury. It avers that “no expertise of any kind was required or used to render Borison’s opinions” and that “this incident falls well within the common knowledge of the jury.”
Lopez contended that Borison’s opinions are “based on specialized knowledge of ASTM standard specifications.” Harvey Gulf replied, arguing that Borison’s explanation of the ASTM safety standards is not helpful to the jury.
The Court notes that Borison has expertise in maritime safety matters. He has analyzed the application of ASTM standards to the facts of this case, which the Court finds would be beyond the knowledge of an average juror. Other distrct courts have indeed held that an expert’s knowledge and application of ASTM standards in a maritime trip and fall case is relevant and admissible.
The Court likewise finds that Borison’s testimony will likely be useful in explaining the ASTM standard and its application to the jury. The proper installation technique of fiberglass grating on a vessel is not within an average juror’s common knowledge. Thus, although this is a tripping case, the Court found that it is more complex than other tripping cases where Borison’s testimony was excluded.
The Court is not persuaded that the jury can use their “common sense” to determine whether the fiberglass grating was properly installed, with the correct use of grid overlap and fasteners.
Held
The Court denied Harvey Gulf’s motion to exclude Robert Borison’s testimony.
Key Takeaway:
Borison has expertise in maritime safety matters and his testimony will likely be useful in explaining the ASTM standard and its application to the jury. He has also analyzed the application of ASTM standards to the facts of this case.
Case Details:
| Case Caption: | Lopez V. Harvey Gulf International Marine, LLC |
| Docket Number: | 2:23cv6348 |
| Court: | United States District Court, Louisiana Eastern |
| Order Date: | January 06, 2025 |
