Gregory Martino v. Pika International, Inc.
600 F. App'x 908
5th Cir.2015Background
- Martino was at a USACE-backed construction site when Gomez ran over his foot with a skid steer on a levee.
- The project involved Kiewit as contractor and Zia and other subcontractors handling archaeological/environmental monitoring for USACE.
- Martino sued multiple parties for negligence, negligence per se, gross negligence, and negligent hiring/training/supervision of Gomez.
- The district court struck the USACE Contract for late disclosure and granted summary judgment for Kiewit on all but Martino’s negligence claim.
- Evidence was excluded in limine across eight categories; at trial, Martino’s Daubert objection to Dr. Herrera was overruled, and Herrera testified about traffic control plans.
- Martino timely appealed challenging these rulings; the court AFFIRMED.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 37(c) sanction for failure to disclose contract | Martino argues contract was public and disclosure unnecessary | Kiewit contends Rule 26(a)(1)(A) disclosure required and sanctions appropriate | District court did not abuse discretion; exclusion affirmed |
| Denial of delay to designate experts | Martino needed time due to delays and difficulties | Calls for strict compliance with scheduling orders; before deposition deadlines | Court did not err in excluding Martino’s expert designations |
| Negligence per se based on OSHA | OSHA standards create duty to Plaintiff as non-employee | OSHA protects employees; cannot support negligence per se against Kiewit | OSHA cannot support negligence per se against non-employee defendant |
| Exclusion of evidence via in limine | Evidence on OSHA standards, citizenship/visa status, and post-accident training relevant | Evidence prejudicial or irrelevant post-summary judgment; proper under rules | Exclusion affirmed |
| Daubert objection to Dr. Herrera and traffic-control testimony | Herrera not properly voir dired; his testimony should be excluded | Herrera’s methods and qualifications are adequate; door opened to testimony on traffic control plans | No abuse of discretion; Herrera properly admitted and traffic-control testimony admissible |
Key Cases Cited
- CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268 (5th Cir. 2009) (four-factor CQ test for Rule 37(c) abuse)
- Hesling v. CSX Transp., Inc., 396 F.3d 632 (5th Cir. 2005) (motion in limine abuse of discretion and prejudice standard)
- Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. Unit A Oct. 1981) (OSHA standards create employee-only negligence per se duties)
- Dixon v. Int’l Harvester Co., 754 F.2d 573 (5th Cir. 1985) (OSHA evidence may show standard of care for employers; employee limitation)
- Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541 (5th Cir. 2003) (four-factor test for scheduling order extensions)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (Supreme Court) (standards for admissibility of expert testimony)
- Hagan v. CSX Transp., Inc., 641 F.3d 112 (5th Cir. 2011) (evidence exclusion under Rule 403 applicable to expert testimony)