Preview
FILED
DALLAS COUNTY
2/15/2016 12:00:00 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO.DC-13-05222
CARL and SANDRA JOHNSON, IN THE DISTRICT COURT OF
Plaintiffs,
vs. DALLAS COUNTY,TEXAS
CMC STEEL FABRICATORS,INC. DB/A
CMC CONSTRUCTION SERVICES; and
COMMERCIAL METALS COMPANY,
Defendants. 68TH JUDICIAL DISTRICT
DEFENDANTS'TRIAL BRIEF REGARDING ADMISSIBILITY OF OSHA
DOCUMENTS AND OSHA/ ANSI REGULATIONS AND STANDARDS
COMES NOW CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and
Commercial Metals Company ("Defendants" or "CMC")and respectfully file this Trial Brief on
the Admissibility of OSHA Documents and OSHA/ ANSI Regulations and Standards.
Defendants file this brief to address Plaintiffs' objections regarding the admissibility of
specific documents within Defendants' Exhibit Number 23 and 38, the OSHA Documents, and
Defendants' Exhibits 57 and 58, the OSHA/ANSI Regulations and Standards, Defendants assert
that Defendants' proposed evidence is both relevant and admissible for the reasons set forth
herein,
ARGUMENT AND AUTHORITIES
Plaintiff was injured on June 28, 2011 while working for his employer, Hensel Phelps
Construction. On November 22, 2011, OSHA issued Hensel Phelps a citation fora "Serious
Violation." Hensel Phelps settled with OSHA, with OSHA agreeing to reduce the violation to
"Other Than Serious Violation," Defendants seek to have this citation along with certain other
relevant materials admitted into evidence in this case,
2198121v.1
I. OSHA DOCUMENTS AT ISSUE IN EXHIBITS 23 AND 38
With the exception of the photographs which Plaintiffs concede are admissible, Plaintiffs
object to the entire OSHA file being designated as an exhibit. As such, Defendants hereby
specifically identify the following exhibits Defendants seek to introduce:
EXHIBIT 23
OSHA Citation and Notice of Penalty: OSHA 000034-000036, OSHA 000039
Investigative Narrative OSHA: 000060-000064
Hensel Phelps Response to OSHA Subpoena dated 7/28/11: OSHA 000096-000098
Carl Johnson signed statement. OSHA 000100-000103
EXHIBIT 38:
Settlement Agreement: CJOHN PX 000904-000906
Penalty Payment Report $1,500 paid : CJOHN PX 000904-000910
OSHA reports and citations are generally admissible if they are relevant. See Valenzuela
i~. Helclenfels B~°othe~~s, Inc., 2006 WL 2294562 (Tex. App.—Corpus Christi, October 19,
2006)(OSHA citations ruled admissible under the exception to the hearsay rule concerning
reports fiom a public agency); see Tex. R. Evid. § 803(8). Texas Rule of Evidence 803(8)
permits the admissions of records and reports of public offices or agencies which set forth (1)the
activities of the office of agency, (2) matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, and (3) in civil cases, factual findings as to any party
resulting from an investigation made pursuant to authority granted by law, unless the sources of
information indicate lack of trustworthiness. Id. Here the custodian of records for the United
States Department of Labor certified that the copies of the documents were true copies of the
2198121 v.1
official documents. The evidence Defendants seek to introduce meets the requirements of Texas
Rule of Evidence 803(8) and is admissible into evidence.
II. OSHA/ ANSI REGULATIONS AND STANDARDS ARE ADMISSIBLE
Plaintiffs have also objected to the admissibility of Defendants' Exhibit 57 and 58, the
relevant OSHA regulations and ANSI standards. However, Texas case law is clear that
OSHA/ANSI regulations and standards are admissible as being relevant to the standards of
conduct that should have been employed by a party. Perez v. Snza~~t Corp., No. 04-12-00712-
CV, 2013, Tex. App. LEXIS 14469, 8, 2013 WL 6203358 (Tex. App. -San Antonio 2013, pet.
filed)(mem. op.); Cary°illo v. Star Tool Co., 14-04-00104-CV,2005 Tex. App. LEXIS 8992, 2005
WL 2848190, at *2 (Tex. App. -Houston [14th Dist.] 2005, no pet.)(mem. op.)(same)(citing
Wc~l-Nla~~t Stores, Inc, v. Seale, 904 S.W.2d 718, 720 (Tex. App. -San Antonio 1995, no writ)).
As the court explained in Seale:
"The relevance of an OSHA standard is that it, and the ANSI standards which
form the basis for most OSHA standards, are the cumulative wisdom of the
industry on what is safe and what is unsafe .. ,Safety principles don't change
depending on whether the victim is an employee, a customer, or a passerby.
Therefore it has relevance to the standard of care. It doesn't establish negligence
per se, and it does not create a separate cause of action,"
Id. at 720; see also Baker Marine Copp, v. Her•r~e~a, 704 S.W.2d 58, 61 (Tex. App. - Coipus
Christi 1985, writ refd n.r.e.) ("Nevertheless OSHA regulations are admissible into evidence as
being relevant to the standards of conduct which should have been employed ")(quoting Kraz~s v,
Alai~~o Nat'l Bank, 586 S.W.2d 202, 208 (Tex. Civ, App. -Waco 1979), affirmed on other•
grounds, 616 S.W.2d 908 (Tex. 1981)). As the Perez court ~oilited out, OSHA r•egulatio~~s are
~diiussible even if OSHA findi~~gs and citations are not. Id. at *7. This case involves evidence of
2198121 v.1
OSHA regltlations, which are admissible alid relevant to the standard o~l care that should have
teen employed.
CONCLUSION
Defendants respectfully request the Court overrule Plaintiffs' objections and allow
Defendants' exhibits into evidence as set forth herein,
Respectfully submitted,
WILSON,ELSER, MOSKOWITZ,
EDELMAN &DICKER,LLP
/s/Allason J. Mavncrr•d
Lee L. Cameron, Jr.
State Bar No. 03675380
Allison J. Maynard
State Bar No. 24055923
Bank of America Plaza
901 Main Street, Suite 4800
Dallas, Texas 75202-3758
Telephone (214)698-8000
Facsimile (214) 698-1101
Lee.Cameron(a~wilsonelser.com
Allison.Maynard(a~wilsonelser.com
ATTORNEYS FOR DEFENDANTS CMC STEEL
FABRICATORS,INC. DB/A CMC
CONSTRUCTION SERVICES AND
COMMERCIAL METALS COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
served via electronic service in accordance with the Texas Rules of Civil Procedure on this 13t~'
day of February, 2p16.
/s/Allison J. Mavna~•d
Allison J. Maynard
Preview
FILED DALLAS COUNTY 2/15/2016 12:00:00 AM FELICIA PITRE DISTRICT CLERK CAUSE NO.DC-13-05222 CARL and SANDRA JOHNSON, IN THE DISTRICT COURT OF Plaintiffs, vs. DALLAS COUNTY,TEXAS CMC STEEL FABRICATORS,INC. DB/A CMC CONSTRUCTION SERVICES; and COMMERCIAL METALS COMPANY, Defendants. 68TH JUDICIAL DISTRICT DEFENDANTS'TRIAL BRIEF REGARDING ADMISSIBILITY OF OSHA DOCUMENTS AND OSHA/ ANSI REGULATIONS AND STANDARDS COMES NOW CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and Commercial Metals Company ("Defendants" or "CMC")and respectfully file this Trial Brief on the Admissibility of OSHA Documents and OSHA/ ANSI Regulations and Standards. Defendants file this brief to address Plaintiffs' objections regarding the admissibility of specific documents within Defendants' Exhibit Number 23 and 38, the OSHA Documents, and Defendants' Exhibits 57 and 58, the OSHA/ANSI Regulations and Standards, Defendants assert that Defendants' proposed evidence is both relevant and admissible for the reasons set forth herein, ARGUMENT AND AUTHORITIES Plaintiff was injured on June 28, 2011 while working for his employer, Hensel Phelps Construction. On November 22, 2011, OSHA issued Hensel Phelps a citation fora "Serious Violation." Hensel Phelps settled with OSHA, with OSHA agreeing to reduce the violation to "Other Than Serious Violation," Defendants seek to have this citation along with certain other relevant materials admitted into evidence in this case, 2198121v.1 I. OSHA DOCUMENTS AT ISSUE IN EXHIBITS 23 AND 38 With the exception of the photographs which Plaintiffs concede are admissible, Plaintiffs object to the entire OSHA file being designated as an exhibit. As such, Defendants hereby specifically identify the following exhibits Defendants seek to introduce: EXHIBIT 23 OSHA Citation and Notice of Penalty: OSHA 000034-000036, OSHA 000039 Investigative Narrative OSHA: 000060-000064 Hensel Phelps Response to OSHA Subpoena dated 7/28/11: OSHA 000096-000098 Carl Johnson signed statement. OSHA 000100-000103 EXHIBIT 38: Settlement Agreement: CJOHN PX 000904-000906 Penalty Payment Report $1,500 paid : CJOHN PX 000904-000910 OSHA reports and citations are generally admissible if they are relevant. See Valenzuela i~. Helclenfels B~°othe~~s, Inc., 2006 WL 2294562 (Tex. App.—Corpus Christi, October 19, 2006)(OSHA citations ruled admissible under the exception to the hearsay rule concerning reports fiom a public agency); see Tex. R. Evid. § 803(8). Texas Rule of Evidence 803(8) permits the admissions of records and reports of public offices or agencies which set forth (1)the activities of the office of agency, (2) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, and (3) in civil cases, factual findings as to any party resulting from an investigation made pursuant to authority granted by law, unless the sources of information indicate lack of trustworthiness. Id. Here the custodian of records for the United States Department of Labor certified that the copies of the documents were true copies of the 2198121 v.1 official documents. The evidence Defendants seek to introduce meets the requirements of Texas Rule of Evidence 803(8) and is admissible into evidence. II. OSHA/ ANSI REGULATIONS AND STANDARDS ARE ADMISSIBLE Plaintiffs have also objected to the admissibility of Defendants' Exhibit 57 and 58, the relevant OSHA regulations and ANSI standards. However, Texas case law is clear that OSHA/ANSI regulations and standards are admissible as being relevant to the standards of conduct that should have been employed by a party. Perez v. Snza~~t Corp., No. 04-12-00712- CV, 2013, Tex. App. LEXIS 14469, 8, 2013 WL 6203358 (Tex. App. -San Antonio 2013, pet. filed)(mem. op.); Cary°illo v. Star Tool Co., 14-04-00104-CV,2005 Tex. App. LEXIS 8992, 2005 WL 2848190, at *2 (Tex. App. -Houston [14th Dist.] 2005, no pet.)(mem. op.)(same)(citing Wc~l-Nla~~t Stores, Inc, v. Seale, 904 S.W.2d 718, 720 (Tex. App. -San Antonio 1995, no writ)). As the court explained in Seale: "The relevance of an OSHA standard is that it, and the ANSI standards which form the basis for most OSHA standards, are the cumulative wisdom of the industry on what is safe and what is unsafe .. ,Safety principles don't change depending on whether the victim is an employee, a customer, or a passerby. Therefore it has relevance to the standard of care. It doesn't establish negligence per se, and it does not create a separate cause of action," Id. at 720; see also Baker Marine Copp, v. Her•r~e~a, 704 S.W.2d 58, 61 (Tex. App. - Coipus Christi 1985, writ refd n.r.e.) ("Nevertheless OSHA regulations are admissible into evidence as being relevant to the standards of conduct which should have been employed ")(quoting Kraz~s v, Alai~~o Nat'l Bank, 586 S.W.2d 202, 208 (Tex. Civ, App. -Waco 1979), affirmed on other• grounds, 616 S.W.2d 908 (Tex. 1981)). As the Perez court ~oilited out, OSHA r•egulatio~~s are ~diiussible even if OSHA findi~~gs and citations are not. Id. at *7. This case involves evidence of 2198121 v.1 OSHA regltlations, which are admissible alid relevant to the standard o~l care that should have teen employed. CONCLUSION Defendants respectfully request the Court overrule Plaintiffs' objections and allow Defendants' exhibits into evidence as set forth herein, Respectfully submitted, WILSON,ELSER, MOSKOWITZ, EDELMAN &DICKER,LLP /s/Allason J. Mavncrr•d Lee L. Cameron, Jr. State Bar No. 03675380 Allison J. Maynard State Bar No. 24055923 Bank of America Plaza 901 Main Street, Suite 4800 Dallas, Texas 75202-3758 Telephone (214)698-8000 Facsimile (214) 698-1101 Lee.Cameron(a~wilsonelser.com Allison.Maynard(a~wilsonelser.com ATTORNEYS FOR DEFENDANTS CMC STEEL FABRICATORS,INC. DB/A CMC CONSTRUCTION SERVICES AND COMMERCIAL METALS COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served via electronic service in accordance with the Texas Rules of Civil Procedure on this 13t~' day of February, 2p16. /s/Allison J. Mavna~•d Allison J. Maynard