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Paster v. Ingram Barge Co.

United States District Court, E.D. Louisiana

June 12, 2015

TOMMY PASTER, Plaintiff,


SARAH S. VANCE, District Judge.

Before the Court is defendant Ingram Barge Company's motion in limine to exclude the expert testimony of Robert Borison.[1] The Court denies the motion because it finds that Borison's expert testimony will assist the jury in resolving the instant dispute.

I. Background

Plaintiff Tommy Paster alleges that he was injured while working as a deckhand aboard the M/V O.A. FRANKS, a vessel owned and operated by defendant.[2] According to plaintiff, he felt a "twinge" in his back while lifting equipment from a tugboat up to the deck of an adjacent barge.[3] More specifically, plaintiff alleges that he was standing on the edge of the barge and used a three- to four-foot pole with a hook attached to grab equipment from the deck of a tugboat located several feet below him. Once he had the equipment hooked, plaintiff would pull the equipment up several feet to the deck of the barge.[4] Plaintiff states that he was able to finish his duties that day, but awoke the following day with pain radiating from his back down his leg.[5] Plaintiff filed suit against defendant alleging that the unseaworthiness of the M/V O.A. FRANKS and that defendant's negligence caused his injuries.[6]

In support of his claim, plaintiff offers the expert report of Robert Borison, which purports to "describe[] the accident that occurred aboard a tow of the M/V Capt. O.A. FRANKS... and presents findings on factors that may have contributed to the injuries sustained."[7] Borison opines that three "problems" with defendant's workplace safety practices caused plaintiff's injuries. First, Borison opines that an "equipment/manpower problem" contributed to plaintiff's injury:

EQUIPMENT/MANPOWER PROBLEM Heavy and awkward equipment and material should only be moved and lifted by mechanical means or with sufficient help.
MISSING EQUIPMENT OR LACK OF MANPOWER: The position Mr. Paster was forced to be in while lifting this equipment, placed him in an unsafe lifting position. To lift and pull the wire up the 8 to 10 feet, from the deck of the tow boat to the deck of the barge, Mr. Paster was forced to position his feet near the edge of the barge, with his hands in front of his face, lifting the hook's pole and wire hand over hand. This position is an unsafe lifting position because it forces the worker to lift the weight from the waist to the shoulder position, and requires an unusual amount of strain on a worker's back and shoulders.[8]

Second, Borison identifies a "management problem" that allegedly contributed to plaintiff's accident:

MANAGEMENT PROBLEM: A competent safety professional should have evaluated the various lifting tasks that Ingram Marine's workers were required to make. The evaluation of the potential lifts should include the object's weight, its typical hand locations at the beginning and ending of the lift, the presence of proper hand couplings, its relative size and shape configuration, and the typical distance the object will be moved both vertically and horizontally.
JOB/SITE/TASK/OBJECT EVALUATION: In this particular case, Ingram's Safety Department should have addressed the need for moving heavy equipment to and from different levels/locations using manual material handling techniques vs. mechanical means. A determination should have been made for each object as to whether this object should be moved only by mechanical methods or whether it can be moved safely manually. If it is determined that it can be moved manually, then the next question arises relative to how many workers will be required to manually move the object. Unless no mechanical means are present, or capable of being installed, or the object's weight is reasonably light, then and only then should manual methods be considered. For those inexperienced safety professionals, the NIOSH LIFTING GUIDELINE, ABS Guidelines, ASTM F 1166, etc were developed to assist in those determinations....[9]

Finally, Borison opines that defendant failed to adequately train plaintiff on proper lifting techniques:

MANAGEMENT PROBLEM: Once the objects, equipment, tools, etc. are identified for manual material lifting, specific training must be provided to the workers to address any unique procedure associated with the lift, as well as general lifting procedures.
LACK OF TRAINING: As shown below, Ingram's Orientation Manual does show several examples of workers lifting safely and unsafely, but Mr. Paster stated during our interview, that he was never trained how to manually lift and move equipment from one level to another safely. As the tasks of moving equipment and material from the tow boats to the deck barges would be considered common place in this industry, it only stands to reason that Ingram's hands-on training would have included these necessary tasks.[10]

Taken together, Borison's expert testimony seeks to establish that (1) plaintiff's work assignment required him to assume an unsafe lifting position, thereby causing his injury, (2) a reasonably competent safety professional would have assigned more manpower or mechanical power to assist plaintiff with the lift, and (3) defendant ...

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