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At a Glance:
Allison v. Nibco, Inc.
May 21, 2003
9:02-CV-172 (TH)
Unpublished Opinion

Allison v. Nibco, Inc.

United States District Court,

E.D. Texas,

Lufkin Division.

Judith Anne ALLISON, Individually, and on behalf of the estate of Seth Allison, deceased, and as next friend for George Thomas Allison, a minor, Plaintiff,


NIBCO, INC., Defendant.

Civil Action No. 9:02-CV-172 (TH) JURY.


May 21, 2003.

Named Expert: J. Wayne SeelBach

Attorneys & Firms

Ron Adkison, Wellborn Houston Adkison Mann Sadler & Hill, Henderson, TX, Dennis Gerald Black, Attorney at Law, Tyler, TX, for Plaintiffs.

Brent Lee Watkins, Galen Robert Alderman, Jr., James Stephen Roper, Zeleskey Cornelius Hallmark Roper & Hicks, Lufkin, TX, for Defendant.


THAD HEARTFIELD, District Judge.

*1 Before the Court is Defendant’s Motion to Exclude the Testimony of Plaintiffs’ Expert and Brief In Support Thereof [Clerk’s Docket No. 24] filed March 10, 2003. Having considered the motion, the response, the record and the applicable authorities, the Court is of the opinion that the motion should be DENIED.


This lawsuit arises from a workplace accident that occurred on or about March 12, 2002. Seth Allison was an employee of Defendant Nibco, Inc. (“Nibco”) and was removing equipment in the foundry building section of the plant. Mr. Allison was killed when a hopper broke free and fell, causing the scissor lift on which Mr. Allison was working, to fall. Mr. Allison died as a result of the injuries sustained in the fall. He was survived by his common law wife Judith Anne Allison and his minor child George Thomas Allison, both plaintiffs in this case.

Plaintiffs designated Wayne Seelbach to testify as a safety expert. Mr. Seelbach completed his report on January 6, 2003. The report was supplemented on March 27, 2003. Mr. Seelbach gave his deposition on March 3, 2003. Mr. Seelbach determined that the following omissions on the part of Nibco caused or contributed to the incident in question: 1) perform a Job Safety Analysis for the hazardous task of cutting the 600 pound hopper free from its mounts with a person working in a scissor lift approximately 15 feet aloft; (2) train employees on the recognition and avoidance of unsafe conditions at work and the regulations applicable (including not training the maintenance workers in safe demolition work practices); (3) prepare and provide a written demolition plan by a competent person; (4) design and implement a proactive safety management system that would have assessed the risb involved with the demolition work and eliminated or managed those risb; and (5) utilize the bucket swivel boom lift, used by Nibco on several previous occasions, which would have provided a safer and more stable elevated work platform for the demolition work. Nibco has moved to exclude the testimony of Wayne Seelbach in its entirety. For the reasons stated below, the Court denies the motion to exclude the testimony of Wayne Seelbach.


Trial courts are charged with the responsibility of acting as the gatekeepers of expert testimony.1 See Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579, 590-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 371-72 (5th Cir.2000). When expert testimony has been challenged, it is incumbent upon the court to conduct a preliminary fact-finding to determine whether the expert is qualified to render the proffered opinions and whether the substance of the testimony is both reliable and relevant. See FED.R.EVID. 702; see also FED.R.EVID. 104(a); see also Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998) (en banc). Following the fact finding, “the court must articulate its basis for admitting expert testimony.” See Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir.2001).

*2 The party proffering expert testimony has the burden of establishing by a preponderance of the evidence that challenged expert testimony is admissible. See FED.R.EVID. 104(a); see also Moore, 151 F.3d at 276. The proponent does not have to demonstrate that the testimony is correct, only that the expert is qualified and that the testimony is relevant and reliable. See Moore, 151 F.3d at 276 (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir.1994)). That one line of expert testimony is found to be reliable and therefore, admissible, does not mean that contradictory testimony should be excluded as unreliable. See ADVISORY COMMITTEE NOTE TO FED.R.EVID. 702.

With respect to qualifications, the proponent must demonstrate that the expert possesses a higher degree of knowledge, skill, experience, training or education than an ordinary person. See FED.R.EVID. 702. However, the “ ‘emphasis on qualifications over reliability of the expert testimony reflect [s] a pre-Daubert sensibility.’ ” See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir.1999). “As long as some reasonable indication of qualification is adduced, the court may admit the evidence without abdicating its gate-keeping function.” Id.

Daubert and its progeny focus on challenges to the substance of expert testimony. The rules of evidence articulate three general considerations bearing upon the reliability and relevance of expert testimony:

(1) whether the testimony is based upon sufficient facts or data;

(2) whether the testimony is the product of reliable principles and methods; and

(3) whether the expert has applied the principles and methods reliably to the facts of the case.

See FED.R.EVID. 702.

The first requirement is one of sufficiency, inquiring whether the expert’s testimony is grounded upon sufficient facts and data. This consideration is quantitative rather than qualitative in nature. See ADVISORY COMMITTEE NOTE TO FED.R.EVID. 702. The “facts and data” language is broad enough to include: reliable opinions of other experts; hypothetical facts supported by the evidence and facts that may be otherwise inadmissible. Id. “When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts.” Id. “The emphasis ... on ‘sufficient facts or data’ is not intended to authorize a trial court to exclude an expert’s testimony on the ground that the court believes one version of the facts and not the other.” Id.

The second and third prongs are qualitative in nature, requiring that the principles and methods be both reliable in and of themselves and reliably applied to the facts of the case. Courts have considered various factors as indicators of whether these two requirements have been satisfied:

1. whether the theory or technique has been tested;

2. whether the theory or technique has been subject to peer review and publication;

*3 3. the existence and maintenance of standards and controls;

4. whether the theory or technique is generally accepted in the relevant field of expertise;

5. whether the theory or technique was developed independent of or expressly for the purpose of litigation;

6. whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

7. whether the expert has adequately accounted for obvious alternative explanations;

8. whether the expert has utilized a standard of care comporting with the standard generally required by the field of expertise; and

9. whether the field of expertise is known to reach reliable results.

See Daubert, 509 U.S. at 592-94; see also Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir.1995); see also General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); see also Claar v. Burlington N. R.R., 29 F.3d 499 (9th Cir.1994); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see also Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.1997); see also Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.1998) (en banc).

The above referenced list of factors is not exclusive and all factors do not apply in every case. See Daubert, 509 U.S. at 593 (“[m]any factors will bear on the inquiry and we do not presume to set out a definitive checklist or test”). The test of reliability and relevance is flexible, and courts are given broad latitude to determine which factors are appropriate based upon the type of testimony at issue. Id.; see also Kumho Tire, 526 U.S. at 151-52. Finally, no single factor is dispositive on the admissibility of a particular expert’s testimony. See, e.g., Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir.1999).

A trial court’s determination regarding the qualifications, reliability and relevance of an expert, and the procedure2 utilized to make those determinations, is reviewed for abuse of discretion. See Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508; see also Seatrax, 200 F.3d 358 at 371.


Nibco seeks to exclude Mr. Seelbach’s testimony on two grounds: 1) Mr. Seelbach’s testimony is not relevant because it is not conclusive as to fault, and 2) Mr. Seelbach’s testimony is not reliable because his opinion is based strictly on the findings of OSHA and their subsequent citations. See Def’s Mot. to Exclude. The Court will address each contention.

I. Mr. Seelbach’s Qualifications

Mr. Seelbach is properly qualified as a safety expert in this case because he possesses a higher degree of knowledge, skill, experience, training or education than an ordinary person. He is a safety consultant with over 29 years of experience in the development and implementation of occupational safety and health management systems in the USA, Europe, Africa, South America and Southeast Asia. Mr. Seelbach has been qualified as an expert in those topics in many federal and state courts. Since 1984, Mr. Seelbach has worked as asafety management consultant for onshore/offshore construction, general industry and forensics. From 1973 to 1981 Mr. Seelbach served as the safety coordinator for Brown & Root, Inc. on North Sea oil and gas offshore projects. Currently, Mr. Seelbach is a professional member of the American Society of Safety Engineers, a corporate member of The Institution of Occupational Safety and Health, and is on the Safety & Legislation Committee for the International Marine Contractors Association, UK. Finally, Mr. Seelbach has worked as an Accredited OSHA Instructor of Construction Safety and Health by the United States Department of Labor and is approved as a Professional Safety Source # 30 by the Texas Workers’ Compensation Commission.

II. Reliability and Relevance of Mr. Seelbach’s Methodology

A. Mr. Seelbach’s Opinions are Based Upon Sufficient Facts and Data

*4 Nibco first argues that Mr. Seelbach’s opinions are not based upon sufficient facts and data. Specifically, Nibco submits that Mr. Seelbach’s opinions are predicated exclusively on the OSHA findings. Def’s Mot. to Exclude at 5. The Court disagrees. Mr. Seelbach reviewed the depositions of Todd Parrish. Terrance Acrey, Nakia Wilson, and Jim Russell. Seelbach Deposition at 34. He examined the obituary, the divorce decree, photos of the scene, the Nibco bulletins, medicals, the police report, the Nibco incident report, the minutes of the safety meeting, the action plan, the operation manual on the aerial work platform, Nibco’s Standard Procedures, the full OSHA report, Nibco’s Operations and Safety Manual for the scissor lift, and the OSHA citations. Id. at 35. It is apparent to the Court that Mr. Seelbach reviewed much more than the OSHA citations. Therefore, the Court finds that Mr. Seelbach’s testimony is predicated upon sufficient facts and data.

B. Mr. Seelbach’s Opinions are the Product of Reliable Principles and Methods and Mr. Seelbach Has Applied the Principles and Methods Reliably to the Facts

The second and third prongs of Rule 702 analysis are qualitative in nature, designed to assess whether the principles and methods used by the experts are reliable and have been reliably applied to the facts of the case.

The Court concludes that Mr. Seeibach’s principles and methods are reliable in and of themselves and have been reliably applied to the facts of this case. Mr. Seeibach’s testimony is based upon his experience and training in the established field of industrial safety, and not on any novel scientific method or technique. Mr. Seelbach reached his conclusions by drawing upon industrial safety standards and his 29 years of experience as a safety consultant. Mr. Seeibach’s testimony will assist the trier of fact in the complicated areas of OSHA regulations and industrial safety practices.


The Court FINDS that plaintiffs have demonstrated by a preponderance of the evidence that Wayne Seelbach is qualified by knowledge, skill, experience, training and education to testify as to the opinions contained in his report and deposition.

The Court FINDS that plaintiffs have demonstrated by a preponderance of the evidence that the methodologies utilized by Wayne Seelbach are both reliable and relevant.


IT IS THEREFORE ORDERED that Defendant’s Motion to Exclude the Testimony of Plaintiffs’ Expert and Brief In Support Thereof [Clerk’s Docket No. 24] is in all things DENIED.




This being said, “the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.” See United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir.1996). “ ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” Id. (quoting Daubert, 509 U.S at 596). “[T]he district court should approach its task ‘with proper deference to the jury’s role as the arbiter of disputes between conflicting opinions.’ ” Id. at 1077.


“ ‘Trial courts should be allowed substantial discretion in dealing with Daubert questions; any attempt to codify procedures will likely give rise to unnecessary changes in practice and create difficult questions for appellate review.’ ” See ADVISORY COMMITTEE NOTE TO FED.R.EVID. 702 (quoting Daniel J. Capra, The Daubert Puzzle, 38 Ga. L.Rev. 699, 766 (1998)).

End of Document