Opinion
Civ. No. 99-3361, c/w 99-3605.
February 22, 2001.
ORDER AND REASONS
Before the Court is Defendants Parker Drilling Offshore, L.L.C.'s and Universal Services' Motion to Exclude or Limit Expert Testimony. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.
A. BACKGROUND
Plaintiff Steven Mang alleges that he was injured when he rolled out of a third-tier bunk in the living quarters of an offshore drilling rig. Defendant Parker Drilling Offshore, L.L.C. ("Parker") owned the rig, which had been skidded onto a production platform on the Outer Continental Shelf. Although Mang was performing a job for the platform owner, he was allowed to sleep in Parker's living quarters, and an employee of Universal Services, Parker's caterer, directed him to sleep in the offending bunk.
Mang filed suit in federal and state courts against Parker, Universal and the platform owner, asserting liability under Louisiana Civil Code articles 2315 and 2317. In anticipation of trial, Mang retained Robert Borison, a gentleman with over 25 years of experience in fields relating to the exploration and production of oil and gas and the marine industry, who opined that Parker was negligent for violating OSHA standards prohibiting triple-tier bunks and for failing to ensure that portable bed rails were installed on the bunks. Parker and Universal now move to exclude or limit Mr. Borison's testimony.
This Court previously ruled as a matter of law that the platform owner could not be held liable for Mang's injuries because it neither exercised operational control over the rig's living quarters nor authorized the allegedly unsafe practice of utilizing triple tier bunks. See Order and Reasons, 2000 WL 1206791 (E.D.La. Aug. 23, 2000).
The Court has only five pages of Mr. Borison's report. Other than stating that OSHA regulations are applicable, these pages do not contain Mr. Borison's conclusions as to negligence. The Court, therefore, relies on Defendants' description of Mr. Borison's proffered opinion.
B. LAW AND ANALYSIS
Although ostensibly a Daubert motion, the gravamen of Defendants' argument is that, contrary to Mr. Borison's opinion, the OSHA regulation found at 29 C.F.R. § 1910.142 (1998) does not apply to sleeping accommodations located on the Outer Continental Shelf. Among other things, this regulation prohibits the use of "triple-deck bunks" in "temporary labor camps." 29 C.F.R. § 1910.142 (b)(3). Whether the regulation applies on the OCS depends on the preemption provisions of OSHA and the Outer Continental Shelf Lands Act (OCSLA).
As this Court previously has ruled, because the alleged accident occurred on an offshore platform located on the Outer Continental Shelf, the appropriate basis of jurisdiction is OCSLA. See Order and Reasons, 2000 WL 1206791 (E.D.La. Aug. 23, 2000). The Court, therefore, must apply "federal law, supplemented by state law of the adjacent state," in this case Louisiana. Bartholomew v. CNG Producing Co., 832 F.2d 326, 328 (5th Cir. 1987) (quoting Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969)). A particularly thorny area in OCSLA jurisprudence, presented squarely by the instant motion, is whether Coast Guard regulations, through OCSLA, preempt OSHA regulations on platforms located on the Outer Continental Shelf.
As the Fifth Circuit recently stated in Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898 (2000), cert. granted sub nom. Chao v. Mallard Bay Drilling, Inc., ___ S.Ct. ___, 69 USLW 3410 (2001),
By its own terms, the OSH Act does not apply to "working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." [ 29 U.S.C. § 653 (b)(1).] Under 14 U.S.C. § 2, the Coast Guard "shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department. . . ."Id. at 900. The Fifth Circuit consistently has held that "OSHA regulations do not apply to vessels in navigation" since the Occupational Safety and Health Review Commission itself takes the view that the Coast Guard has jurisdiction over the safety and health of seaman, and "thus has disclaimed an intention to promulgate standards applicable to seaman." Clary v. Ocean Drilling and Exploration Co., 609 F.2d 1120 , 1122 (5th Cir. 1980).
However, where, as here, an injury occurs on a drilling rig located on a platform on the Outer Continental Shelf, the outcome is not so clear. OCSLA, by its own terms, contemplates that OSHA regulations may apply to operations conducted on the OCS: 43 U.S.C. § 1347 (d) provides that "[n]othing in this subchapter shall affect the authority provided by law to the Secretary of Labor for the protection of occupational safety and health. . . ." And OSHA states that it "shall apply with respect to employment performed in a workplace in . . . Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act. . . ." 29 U.S.C. § 653 (a). The Fifth Circuit's difficulty in Mott v. ODECO, 577 F.2d 273 (1978), provides comfort (though unfortunately no dispositive answers) to courts addressing this complicated issue:
There is sharp disagreement between the parties as to the applicability of OSHA regulations to fixed platforms on the Outer Continental Shelf. ODECO contends that regulations promulgated by the Secretary of Labor under OSHA are inapplicable since such regulations are not to apply to "working conditions" with respect to which other agencies "exercise" regulatory authority, 29 U.S.C. § 653 (b)(1). The Coast Guard, ODECO asserts, exercises such authority over fixed platforms on the Outer Continental Shelf. See 43 U.S.C. § 1333 (e); 33 C.F.R. § 143 (1977). Quality, pointing out that the Coast Guard has issued no regulations concerning the safety of ladders on fixed platforms, contends with equal vigor that the Coast Guard has not "exercised" its authority with respect to the particular "working condition" in question. Absent such exercise, OSHA standards must apply, says Quality, since OSHA specifically provides that it shall be applicable to the Outer Continental Shelf lands. See 29 U.S.C. § 653 (a). These arguments present questions of considerable difficulty, complexity, and refinement. Our leading case on the displacement of OSHA standards elaborates an approach quite sensitive to nuance. See S. Pac. Transp. Co. v. Usery, 539 F.2d 386 (5th Cir. 1976). We doubt seriously that these issues can be adequately addressed and correctly resolved in the context of this dispute between two private parties and in the absence of both of the two public agencies primarily interested.Id. at 278 n. 6. The similarities between the arguments advanced by ODECO and Quality in Mott are strikingly similar to the arguments of the Defendants and Mang in the case at bar. Like the Court in Mott, this Court believes that it, too, can reach a conclusion without having to resolve these "difficult, complex, and refine[d]" questions "in the absence of both of the two public agencies primarily interested."
In Mott, the Fifth Circuit was able to "dispos[e] of the indemnity claim on other grounds[,] mak[ing] it unnecessary to reach the question of the OSHA standard's applicability . . ." Id.
Louisiana Civil Code article 2315 provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." "In determining `fault,' Louisiana courts apply a duty-risk analysis composed of three parts:
(1) Was the defendant's conduct a cause-in-fact of the harm?
(2) Was a duty imposed on the defendant by a general rule of law to protect this plaintiff from this type of harm arising in this manner?
(3) Was that duty breached?"
Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 156-57 (5th Cir. 1994). In Louisiana the existence of a duty and its scope are questions of law. Duty varies depending on the facts, circumstances, and context of each case and is limited by the particular risk, harm, and plaintiff involved. Id. "In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm." Mundy v. Dep't of Health and Human Resources, 620 So.2d 811, 813 (La. 1993). Thus, the Court concludes, independent of any OSHA or Coast Guard regulation, that Parker had a duty to provide Mang with reasonably safe living quarters while he was on its rig.
The majority in Dupre relied on Mundy in finding that a platform owner owed a duty to provide a safe working environment for a rig owner's employee. The dissent disagreed with the majority's finding that the platform operator specifically authorized the hazardous condition which led to the employee's death. See 20-F.3d at 157-58. On the other hand, the dissent expressly noted that the employee's wife "certainly could look to [the rig owner], her husband's employer, for compensation." Id. at 158. Thus, the dissent did not disagree with the majority that Mundy creates a duty to provide a safe facility but disagreed only as to who owed that duty. In the case at bar, the Court previously ruled that the rig owner's, but not the platform owner's, negligence is at issue.
Moreover, under Louisiana law, the violation of a regulation generally does not constitute negligence per se; rather, the regulations themselves may be relevant evidence bearing on the issue of negligent conduct. See Dupre, 20 F.3d at 157 n. 13; Romero v. Mobil Exploration and Producing, 939 F.2d 307, 311 (5th Cir. 1991). Therefore, the Court will allow Mr. Borison to testify briefly about the OSHA and Coast Guard regulations identified in his report, although he will not be allowed to testify that either regulation per se was binding on Parker.
Interestingly, the Coast Guard regulation Mr. Borison identifies, 46 C.F.R. § 92.20-20 (d), prohibits placing "more than one berth . . . above another" in the sleeping accommodations of certain vessels. The Defendants do not attempt to explain why triple-tier bunks would be prohibited in temporary labor camps and on certain vessels but not on drilling rigs located on the Outer Continental Shelf. Given the recognized dangers of working on the OCS, it would seem anomalous to allow there a practice considered dangerous in other settings, and a strong argument could be made that the Coast Guard intended by its silence to adopt the OSHA prohibition. On the other hand, regulations designed for land-based temporary labor camps may be inappropriate to meet the special circumstances presented by offshore work. Mang notes that proposed Coast Guard regulations at 33 C.F.R. § 143.1315 and 143.1317 would prohibit triple-tier bunks in sleeping accommodations on the OCS. Whether the proposed regulations indicate a change of heart within the Coast Guard with regard to the safety of triple-tier bunks or merely represent an attempt to lessen confusion regarding proper sleeping accommodations on the OCS is, of course, not facially clear.
The Court does agree with Defendants that rolling out of bed is a common enough phenomenon that expert testimony will not be of particular assistance to "the trier of fact to understand the evidence or to determine a fact in issue." FED. R. EVID. 702. The Court is, therefore, prepared to severely circumscribe the scope of Mr. Borison's testimony once it receives his full report.
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendants Parker Drilling Offshore, L.L.C.'s and Universal Services' Motion to Exclude or Limit Expert Testimony is GRANTED IN PART and DENTED IN PART.
New Orleans, Louisiana, this 22 day of February 2001.
EDITH BROWN CLEMENT, UNITED STATES DISTRICT JUDGE.