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Peterson v. Murex Petroleum Corp.

United States District Court, D. North Dakota

April 17, 2019

Adam Peterson, Plaintiff,
v.
Murex Petroleum Corporation, Mickey Peck, company man, Stokes and Spiehler, Earl Britzenhoff, Company Man, and Phoenix Operating Company, Defendants, and Murex Petroleum Corporation, Defendant and Third-Party Plaintiff,
v.
WISCO, Inc., Third-Party Defendant.

          ORDER RE MOTIONS IN LIMINE

          Charles S. Miller, Jr., Magistrate Judge United States District Court

         I. BACKGROUND

         In this action, plaintiff Adam Peterson (“Peterson”) is suing to recover damages for an injury he sustained on April 15, 2012, while working as a derrick hand for third-party defendant WISCO, Inc. (“WISCO”). At the time of the accident, WISCO was doing rehabilitative work on an oil well operated by defendant and third-plaintiff Murex Petroleum Corporation (“Murex”). Plaintiff was injured when his arm became entangled in the rods while he was in a basket up in the derrick.

         In addition to contracting with WISCO to perform the rehabilitative work, Murex engaged the services of two companies who each provided a person to represent Murex at the wellsite with respect to the work being performed by WISCO. In oilfield parlance, the onsite representative for Murex is referred to as the “company man.” One of the firms that Murex engaged to provide it with a company man was defendant Phoenix Operating Company (“Phoenix”). The individual retained by Phoenix for this purpose was defendant Earl Britzenhoff (“Britzenhoff”). The other firm engaged by Murex was defendant Stokes and Spiehler (“Stokes”). The individual that Stokes retained to be Murex's company man was defendant Micky Peck (“Peck”).

         Plaintiff has alleged in the complaint that one or more of the defendants are at fault for his injuries (either directly as result of their own conduct or vicariously) on account of his not having a safe place to work and being directed to follow unsafe working practices.

         Before the court now are two motions in limine, one brought jointly by Stokes and Peck seeking to exclude from evidence certain opinions of Mr. Karrow, Peterson's vocational expert, relative to Peterson's alleged past and future wage loss. The other is a motion by Peterson seeking to exclude rebuttal facts and opinions offered by Murex's engineering expert relative to certain assumptions made by Karrow, either explicitly or implicitly, in arriving at his opinions with respect to past and future wage loss.

         II. DISCUSSION AND ORDERS

         A. Motion to exclude from evidence opinions of Peterson's vocational expert

         According to Karrow's expert witness disclosure, his training and work experience is primarily in the field of vocational rehabilitation, training, and placement. In this case, in addition to offering testimony about jobs that might be available to Peterson given assumed physical limitations and what rates of pay may be available for those job, Karrow is prepared to offer opinions and conclusions with respect to Peterson's past and future wage loss.

         Karrow's expert report sets forth some of the figures he relies upon in making his estimate of past and future wage loss, but not all. Some can only be determined by back calculating from other amounts set forth in the report. The same is also true for some of the assumptions that Karrow makes; some are explicit while others are implicit. Finally, the basis for some of the amounts and assumptions is uncertain. In particular, the court notes the following:

• Karrow states Peterson was earning $2, 441 per week at the time of the accident. It is unclear what Karrow relies upon for this amount. There is no indication that Karrow examined Peterson's tax returns, W2 earning statements, pay stubs, bank records, or WISCO payroll records. In another portion of the report, Karrow states he was told by Peterson he was earning $31.50 per hour, but it is not clear whether Peterson claimed this was his base pay, pay for overtime hours, or what he believed to be an average hourly rate based upon both regular and overtime hours. If the basis for the $2, 441 per week earnings that Karrow uses is Peterson's statement that he was earning $31.50 per hour, this would mean that Karrow has assumed that Peterson would be working 77.5 hours week (i.e., $2441/$31.50=77.49).
• Karrow first calculates Peterson's past wage loss for the fourteen weeks he was off work following the accident. Karrow states that the loss during this period was $34, 174 based upon multiplying fourteen weeks times the assumed wage of $2, 441 per week. Karrow then calculates the wage loss for the approximately 32 weeks he returned to work for WISCO doing light duty work. Karrow states Peterson was earning only $18.00 per hour and working only 40 hours per week during his period, resulting in weekly wage of $720. Again, the source of this information is uncertain. Karrow then states that, when comparing the $720 per week he was earning while working for WISCO on light duty following the accident to the $2, 441 he was earning at the time of the accident, this resulted in a net wage loss per week of $1, 721 or approximately $55, 072 for the 32-week period.
• Karrow next states that Peterson returned to Minnesota and tried some other jobs, but was not able to do the work on a sustained basis, but at age 33 was able to work as a cook, earning $13.00 per hour and working 40 hours per week. Karrow then calculates both the remaining past as well as future wage loss from this point forward based upon Peterson earning $520 per week as a cook even though Karrow opines that the most of the jobs that Peterson could perform given his physical and educational limitations likely would result in somewhat less weekly earnings.
• In making his remaining calculations of past and future wage loss, Karrow states Peterson had work life expectancy of 37 years. He offers no basis for this assumption other than Peterson's statement that he would have continued to work in the oilfields until age 70. Also, necessarily implicit in the calculations that follow is that work would have been available to Peterson in the oilfields for the next 37 years and that Peterson would otherwise be able to ...

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