F & H Coatings, LLC v. Acosta
900 F.3d 1214
10th Cir.2018Background
- F & H Coatings contracted to sandblast and paint a 12,000‑pound steel pressure vessel at Boardman’s plant; while elevated on F & H’s pipe‑rack supports, the vessel slipped and crushed F & H employee Toney Losey, killing him.
- OSHA cited F & H under the General Duty Clause, alleging the vessel was not placed on a work rack that prevented unintentional lateral movement; OSHA assessed a $7,000 penalty.
- ALJ held a two‑day hearing, admitting testimony from DOL expert Brian Hope (safety consultant) over F & H’s Daubert/Rule 702 objections; evidence included witness testimony, photos, and industry practice testimony.
- ALJ found (and the Commission let the ALJ’s decision stand) that placing the heavy, awkwardly shaped vessel on rounded pipe racks without securing it created an obvious, recognized hazard likely to cause death or serious harm.
- ALJ concluded feasible abatement measures existed (e.g., rollers or I‑beam stands as used by Boardman and others); Tenth Circuit reviewed for substantial evidence and abuse of discretion and affirmed the Commission’s order.
Issues
| Issue | F & H’s Argument | DOL/Commission’s Argument | Held |
|---|---|---|---|
| Admissibility of Mr. Hope’s expert testimony | Hope unqualified; opinions speculative and unreliable under Fed. R. Evid. 702/Daubert | Hope qualified by experience, certifications, and industry knowledge; testimony reliable for general support/rigging/safety procedures | ALJ did not abuse discretion admitting Hope; testimony admissible under Rule 702/Kumho analysis |
| Whether placing the vessel on pipe racks was a hazardous condition | Placement was a "freakish, unforeseeable" accident; pipe racks were adequate and supervisor checked stability | Physical characteristics (weight, manway off‑center, rounded crossbeams) plus testimony showed increased risk of lateral movement | Substantial evidence supports ALJ finding the placement created a hazard |
| Whether the hazard was recognized by employer or industry (or obvious) | F & H: supervisor’s pre‑work check showed no hazard; industry does not generally view such racks as hazardous | Hazard was obvious to F & H (supervisor’s inspection, use of chains/pins on racks, need to be "dead center") and could impute constructive knowledge | ALJ reasonably found F & H recognized or should have recognized the hazard; substantial evidence supports recognition |
| Feasible abatement measures available | Some abatement (rollers) impractical for painting with legs attached; repositioning impractical | Rollers and I‑beam stands were feasible and used by Boardman/others; crane could assist rotation; extra steps not infeasible | ALJ reasonably found feasible, effective alternatives (rollers, I‑beams); substantial evidence supports abatement element |
Key Cases Cited
- Jake’s Fireworks Inc. v. Acosta, 893 F.3d 1248 (10th Cir. 2018) (deference to ALJ findings and evidence of hazard from accident circumstances)
- Safeway, Inc. v. Occupational Safety & Health Review Comm’n, 382 F.3d 1189 (10th Cir. 2004) (elements to establish a General Duty Clause violation)
- Slingluff v. Occupational Safety & Health Review Comm’n, 425 F.3d 861 (10th Cir. 2005) (definition of substantial evidence review for OSHRC decisions)
- Baroid Div. of NL Indus., Inc. v. Occupational Safety & Health Review Comm’n, 660 F.2d 439 (10th Cir. 1981) (definition of safety hazard and recognition element)
- Dye Constr. Co. v. Occupational Safety & Health Review Comm’n, 698 F.2d 423 (10th Cir. 1983) (accident evidence probative of hazard seriousness; proximate cause not required)
- Nacchio, 555 F.3d 1234 (10th Cir. 2009) (Rule 702 standard and abuse‑of‑discretion review for expert admission)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (experience‑based expert testimony reliability under Daubert)
- Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003) (expert methodology must be reliable under Rule 702)
- Austin Bldg. Co. v. Occupational Safety & Health Review Comm’n, 647 F.2d 1063 (10th Cir. 1981) (burden on Secretary to establish General Duty Clause violation)