Excel Modular Scaffold & Lsng v. OSHC, 943 F.3d 748

Excel Modular Scaffold employed crews to build hanging scaffolds beneath Marathon Refinery docks over Galveston Bay; water was about 18 feet deep.
On Sept. 12, 2016, employee Luis Gonzalez fell into the water when a scaffold leg detached and drowned; crew members were wearing harnesses and PFDs.
OSHA issued multiple citations; the only contested citation charged a “serious” violation of 29 C.F.R. § 1926.106(d) for failing to have a lifesaving skiff immediately available.
Excel filed a Notice of Contest raising 25 affirmative defenses (including infeasibility) but the parties’ joint Prehearing Statement omitted the infeasibility defense and limited live issues to classification and penalty.
At hearing Excel elicited testimony that a skiff may have had difficulty navigating under one dock; the ALJ found Excel waived the infeasibility defense for failing to preserve it in the Prehearing Statement and, alternatively, held Excel failed to prove infeasibility on the merits.
The ALJ affirmed the “serious” classification and penalty; the Commission declined review, and the Fifth Circuit denied Excel’s petition for review.

Issue	Plaintiff's Argument (Secretary)	Defendant's Argument (Excel)	Held
Waiver of infeasibility defense	Prehearing Statement controls; omission of defense waived it	Defense was pleaded earlier and was tried at hearing (testimony); Secretary’s failure to object implies consent	Waiver affirmed — joint Prehearing Statement supersedes pleadings; Excel had chance to raise defense at conference/hearing and did not; ALJ’s enforcement not an abuse of discretion
Merits of infeasibility defense	Even if raised, Excel must prove literal compliance was infeasible and no feasible alternative; record does not meet burden	Dock layout made skiff rescue under Dock 34 infeasible	ALJ’s alternative ruling affirmed — Excel failed to prove infeasibility; partial compliance/limited compliance was feasible and required
Classification as “serious”	Lack of a skiff exposed workers to a substantial probability of death/serious injury (preventative standard)	The absence of a skiff did not substantially cause Gonzalez’s death; classification should be reduced	Affirmed — focus is on the general hazard and preventability, not whether the specific accident would have been prevented; substantial evidence supports “serious” classification

MICA Corp. v. OSHRC, 295 F.3d 447 (5th Cir. 2002) (same standard of review applies when ALJ order becomes final after Commission declines review)
Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005) (definition and application of substantial-evidence review)
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607 (U.S. 1966) (substantial evidence defined)
Flannery v. Carroll, 676 F.2d 126 (5th Cir. 1982) (pretrial order importance; issues omitted are waived)
Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184 (5th Cir. 1985) (pretrial orders control trial scope)
Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998) (joint pretrial order supersedes pleadings)
Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977) (employer bears burden to prove affirmative infeasibility defense)
Cleveland Consol. Inc. v. OSHRC, 649 F.2d 1160 (5th Cir. 1981) (limited/partial compliance can defeat an infeasibility defense)
E. Tex. Motor Freight, Inc. v. OSHRC, 671 F.2d 845 (5th Cir. 1982) (definition of a “serious” violation under OSHA)
Sanderson Farms, Inc. v. Perez, 811 F.3d 730 (5th Cir. 2016) (OSHA standards are preventative; focus on hazard, not single incident causation)
Brennan v. OSHRC, 494 F.2d 460 (8th Cir. 1974) (inquiry focuses on the general hazard, not foreseeability of the precise incident)
Peterson Bros. Steel Erection Co. v. Reich, 26 F.3d 573 (5th Cir. 1994) (partial feasibility at other locations can defeat an infeasibility claim)