December 17, 2020 Practice Points

Expert May Rely on OSHA Standards and Industry Guidelines to Support Opinion

What started off as a garden-variety personal injury case but ended up before the Illinois Supreme Court on issues related to expert witnesses.

by Michael R. Lied

Dale Gillespie worked as a truck driver for Barge Terminal. On February 14, 2012, he was working on a dump trailer manufactured and sold by East Manufacturing and leased by Barge Terminal from Trail Quest, Inc. Gillespie fell off some cast iron stairs on the trailer. He landed on his feet and felt a sharp pain in his back.

Gillespie and his wife filed suit against Robert Edmier, Thomas Edmier, and John Edmier (the owners and operators of Barge Terminal); Trail Quest; and East Manufacturing. The Gillespies alleged that East Manufacturing was strictly liable for, and acted negligently, in designing, manufacturing, and selling a defective and unreasonably dangerous product. The Gillespies further asserted that the product lacked adequate safety features, that East Manufacturing failed to warn consumers about foreseeable dangers from unsafe modifications, and that the product did not undergo product testing for safety.

In a deposition, the Gillespies’ expert, Gary Hutter, opined that the steps on the dump trailer were defective and unreasonably dangerous. Hutter explained that the spacing and width of the steps, as well as the lack of side rails on the dump trailer, did not comply with the recommended practices of the Occupational Safety and Health Administration (OSHA), the American National Standards Institute, the Federal Motor Carrier Safety Regulations, and the Truck Trailer Manufacturers Association.

East Manufacturing moved for summary judgment. The circuit court granted the motion, ruling that OSHA does not apply to trailers and that industry standards are not mandatory.

The Gillespies appealed, challenging, among other things, the trial court’s grant of summary judgment on their strict liability claim against East Manufacturing. The appellate court reasoned that the deposition testimony of Hutter and others was sufficient to create a genuine issue of material fact as to whether the trailer was unreasonably dangerous and reversed the grant of summary judgment and remanded. East Manufacturing successfully petitioned the Illinois Supreme Court to review the case.

East Manufacturing argued that the appellate court erroneously reversed the circuit court’s grant of summary judgment in its favor because government regulations and industry standards not applicable to it or the dump trailer were irrelevant. The Gillespies countered that the government regulations and industry standards addressing the dimension and spacing of steps and ladders served as a basis for their expert’s opinion and that the issue in the appeal was limited to Hutter’s use of such standards in forming his opinion and, if proper, created a genuine issue of material fact, precluding summary judgment.

The Gillespies persuaded the Illinois high court. Whether OSHA and the other protocols mentioned by Hutter during his deposition testimony were also admissible in evidence was not the touchstone for the appeal. Hutter used those sources solely to form his expert opinion. The sources were not admitted as substantive evidence. That was a separate issue not the subject of the appeal. Rather, the issue was whether experts may rely on such data for the limited purpose of explaining the basis for the expert’s opinion.

The Illinois Supreme Court had approved the use of OSHA standards by expert witnesses in Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260 (2002). In Gillespie, Hutter’s deposition testimony, that the spacing and width of the steps and the lack of side rails conflicted with OSHA protocol and other industry guidelines, was intended to support his expert opinion that East Manufacturing designed steps that were defective and unreasonably dangerous. Viewed in a light most favorable to the Gillespies, as the nonmovants, Hutter’s deposition testimony was sufficient to create a genuine issue of material fact as to whether the dump trailer was unreasonably dangerous. Accordingly, the Illinois Supreme Court agreed with the appellate court that the trial court erroneously granted summary judgment in favor of East Manufacturing.

This decision supports an expert’s use of government and industry guidance to explain and support the expert’s opinion, even if the underlying guidance might not otherwise be admissible.

Michael R. Lied is a litigator with Howard & Howard Attorneys, PLLC in Peoria, Illinois.

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