Published: September 09, 2008 09:51 pm      

Motion to exclude testimony in log case denied

FAYETTEVILLE — Fayette County Circuit Judge Paul Blake described as “very, very minimal” Tuesday the margin by which a defense attorney’s motion to exclude the testimony of a plaintiff’s witness in a wrongful death case surrounding a logging accident that happened nearly five years ago was denied.

Blake stated his ruling regarding coal-mining health and safety consultant Homer S. “Sam” Grose was a “close call.” The judge added he believed Grose to be “in over his head” and worried that he has a “serious credibility problem.”

“Do I believe him to be credible? I do not, but that’s not the standard. That is up to the jury,” Blake explained, noting the state Supreme Court has urged lower courts to “liberally interpret” the statute regarding admissibility of expert witnesses.

The motion was filed by Charleston attorney Mary Sanders on behalf of the defendants — Clonch Industries Inc., R.M. Logging Inc. and John Robinson, a company foreman for R.M. Logging. The plaintiff, represented by Charleston lawyer Joshua Barrett, is the administrator of the estate of Clarence T. Coleman, 24.

Sanders argued Grose was not qualified to testify about logging methods and safety. She pointed to what she perceived as factual flaws in two depositions he gave.

“Mining is a far cry from logging,” Sanders argued, contending Grose’s knowledge of the logging industry was “nil” and that his testimony would mislead the jury.

Barrett countered that Grose had “general understandings” as a safety expert and that he does understand the logging industry. When pressed by Blake, Barrett acknowledged Grose’s familiarity with the logging industry was limited to a half-day of informal training he received in 1995.

The lawsuit is scheduled to go to trial Jan. 20. A pre-trial hearing will take place Dec. 15.

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Blake entered a summary order in favor of the defendants on Sept. 20, 2006, but the state Supreme Court “reversed and remanded” the case back to his courtroom in June.

In their written ruling June 16, justices concluded that the summary judgment by Blake was “premature and constituted error.”

They placed the case back in Blake’s hands for a ruling on two fundamental aspects of the case that were still pending when he entered his order.

According to court documents, Coleman was working for the logging company in the Cannelton Hollow area near Smithers on Dec. 2, 2003, when a tree fell on his head and killed him.

The administrators of Coleman’s estate filed suit against R.M. Logging and Robinson on June 17, 2005, citing what they believed to be unsafe working conditions. They claimed Coleman’s death resulted from those conditions. The defendants maintained each of their employees received supervised training.

In August 2006, the defendants filed a motion to exclude Grose’s testimony, asserting his expertise was limited to the mining industry rather than the logging industry.

The high court ordered Blake to rule on that motion, as well as enter an order permitting the plaintiff a reasonable time period for discovery with regard to Kelcey Nicholas, Coleman’s co-worker and a purported witness to his death. The plaintiff had initially moved for a 60-day continuance of the originally scheduled Sept. 25, 2006, trial date.

According to the Supreme Court, neither of those motions was addressed in Blake’s summary judgment.

— E-mail: mhill@register-herald.com