concluding that owner of mill did not contractually assume a duty of care to independent contractor’s employee who was injured while removing sludge from owner’s mill even though contract provided that contractor would obtain advice from owner’s safety director as to safety regulations and agreed to conform thereto
How later courts described this case
- concluding that owner of mill did not contractually assume a duty of care to independent contractor’s employee who was injured while removing sludge from owner’s mill even though contract provided that contractor would obtain advice from owner’s safety director as to safety regulations and agreed to conform thereto
- concluding that "any determination made under OSHA regulations ... is irrelevant as to the issue of whether [the defendant] owed [the plaintiff] a duty because an OSHA standard cannot be used to expand an existing common law or statutory duty, or be used as evidence of an expanded duty of care”
- under Indiana law, “questions of medical causation of a particular injury are questions of science necessarily dependent on the testimony of physicians and surgeons learned in such matters”
Written by the judges who cited it.
The opinion
KIRSCH, Judge,
concurring in result.
I fully concur in the majority decision that summary judgment was appropriately entered for Cerestar USA, Inc.
I reach a different conclusion from the majority on whether the expert testimony was appropriately stricken. I believe that the tendered expert was sufficiently qualified as an expert by his knowledge, skill, experience, training and education, and the specialized knowledge which he possessed would have aided the trier of fact in understanding the evidence. I further believe that the proponent of the evidence demonstrated that the general methodology was based on sufficiently reliable scientific principles.
In Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind.2001), our supreme court noted that Evidence Rule 702 “reflected an intent to liberalize, rather than constrict, the admission of reliable scientific evidence” and that once the threshold is crossed, “the accuracy, consistency, and credibility of the expert’s opinions may be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.” I believe the trial court abused its discretion in striking the testimony.
Because I believe the exclusion of the expert testimony was harmless on the question of whether Cerestar USA, Inc. owed a duty to the plaintiff, I concur in the decision affirming the summary judgment.