On February 07, 2018 a
Motion-Secondary
was filed
involving a dispute between
Gonzalez, Dan Ray,
Herrera, Louisino,
and
Garner, Jimmy,
for Personal Injury
in the District Court of Galveston County.
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Filed: 2/18/2020 12:00 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 40882467
By: Lisa Kelly
2/18/2020 10:20 AM
No. 18-CV-0153
Dan Ray Gonzalez § In the District Court of
§
VS. § Galveston County, Texas
§
Jimmy Garner § 56th Judicial District Court
JIMMY GARNER RESPONSE TO PLAINTIFFS’
MOTION TO TAKE JUDICIAL NOTICE OF
29 CFR 1926.451 OF THE OSHA REGULATIONS
AND
OSHA’S GUIDE TO SCAFFOLD USE IN THE CONSTRUCTION
INDUSTRY NO. 3150, 2002 (REVISED)
The Defendant Jimmy Garner objections to the Court taking judicial notice of these two
items on several grounds.
PLEADINGS OF THE PLAINTIFFS
The Plaintiffs pleadings are limited in their reference to OSHA. The pleadings and the
Requests for Disclosure only reference “In violating applicable OSHA regulations” and does not
identify any portion of the OSHA regulations. The pleadings are insufficient to give notice to the
Defendant as to what portion of the OSHA regulations. Additionally, there is no reference
specifically to 29 CFR 1926.451. 29 CFR is hundreds and hundreds of pages long and the notice
is inadequate.
The pleadings of the Plaintiffs make ABSOLUTELY NO REFERENCE to “A Guide to
Scaffold Use in the Construction Industry”. [Referenced as the “GUIDE”] There are no pleadings
to support the use or offer of the guide. The guide is not any portion of or included in 29 CFR
1926.451. The Court should deny the use of the Guide. The Motion requesting judicial notice is
a complete surprise and was not previously disclosed and should therefore be excluded.
DISCOVERY RESPONSES OF THE PLAINTIFFS ARE INADEQUATE TO UTILIZE
EITHER THE STATUTE OR THE GUIDE
The responses to discovery, specifically responses to requests for disclosure, make the
same general reference to violating applicable OSHA regulations but make no reference to any
portion of OSHA.
Further, there is no designation of any fact witness either as a fact or expert witness who
can offer testimony regarding OSHA requirements and the duties that may or may not exist or be
owed by any individual. There are no pleadings or responses to discovery that identify the capacity
in which the Plaintiffs’ claim Mr. Garner to have any duty or the methods of facts which were a
violation of any duty contained in 29 CFR 1926.451.
There is no evidence that Mr. Garner was ever cited by OSHA for any OSHA violation
regarding the construction project where the incident occurred. No such citation against Mr.
Garner had ever been plead or alleged in discovery responses.
Further there is no reference in the discovery responses of the Plaintiffs to the GUIDE
which the Plaintiffs are asking the Court to take judicial notice of the GUIDE.
DISCOVERY RESPONSES OF THE PLAINTIFFS FAILED TO DESIGNATE
A FACT OR EXPERT WITNESS WITH ANY
KNOWELDGE OF THE APPPLIABILTIY OF 29 CFR 1926.451
To utilize either 29 CFR 1926.451 or the GUIDE it would take a properly designated and
expert witness with sufficient expertise to testify as to Mr. Garner’s duty, if any, under 29 CFR
1926.451. Additionally, under OSHA regulations there are multiple theories which could
potentially be aregued regarding why Mr. Garner has any duty and there are literally hundreds and
hundreds of requirements of OSHA regarding construction. None of those theories have ever been
disclosed in pleadings, discovery response or through designation of fact or expert witnesses.
PRAYER
Movant Garner would request the Court deny the motion to take judicial notice of 29 CFR
1926.451 or the GUIDE for the reasons referenced herein.
6341 Stewart Rd. #265
Galveston, TX 77551
Tel: (281) 924-8786
By:
TOM DICKENS
State Bar No. 05820800
TomDickensLaw@gmail.com
Attorney for Respondent
Certificate of Service
I certify that a true copy of this Notice of Intent to Take Oral Deposition of KENNETH
JOHNSON was served in accordance with rule 21a of the Texas Rules of Civil Procedure on the
following on February 15, 2020.
Eric D. Nielsen
Shea Palavan
9800 Northwest Frwy, Suite 314
Houston, Texas 77092
Tel: (713) 524-4800
Fax: (888) 587-9443
Email: eric@nielsentriallaw.com
TOM DICKENS
Attorney for Respondent
Document Filed Date
February 18, 2020
Case Filing Date
February 07, 2018
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Filed: 2/18/2020 12:00 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 40882467 By: Lisa Kelly 2/18/2020 10:20 AM No. 18-CV-0153 Dan Ray Gonzalez § In the District Court of § VS. § Galveston County, Texas § Jimmy Garner § 56th Judicial District Court JIMMY GARNER RESPONSE TO PLAINTIFFS’ MOTION TO TAKE JUDICIAL NOTICE OF 29 CFR 1926.451 OF THE OSHA REGULATIONS AND OSHA’S GUIDE TO SCAFFOLD USE IN THE CONSTRUCTION INDUSTRY NO. 3150, 2002 (REVISED) The Defendant Jimmy Garner objections to the Court taking judicial notice of these two items on several grounds. PLEADINGS OF THE PLAINTIFFS The Plaintiffs pleadings are limited in their reference to OSHA. The pleadings and the Requests for Disclosure only reference “In violating applicable OSHA regulations” and does not identify any portion of the OSHA regulations. The pleadings are insufficient to give notice to the Defendant as to what portion of the OSHA regulations. Additionally, there is no reference specifically to 29 CFR 1926.451. 29 CFR is hundreds and hundreds of pages long and the notice is inadequate. The pleadings of the Plaintiffs make ABSOLUTELY NO REFERENCE to “A Guide to Scaffold Use in the Construction Industry”. [Referenced as the “GUIDE”] There are no pleadings to support the use or offer of the guide. The guide is not any portion of or included in 29 CFR 1926.451. The Court should deny the use of the Guide. The Motion requesting judicial notice is a complete surprise and was not previously disclosed and should therefore be excluded. DISCOVERY RESPONSES OF THE PLAINTIFFS ARE INADEQUATE TO UTILIZE EITHER THE STATUTE OR THE GUIDE The responses to discovery, specifically responses to requests for disclosure, make the same general reference to violating applicable OSHA regulations but make no reference to any portion of OSHA. Further, there is no designation of any fact witness either as a fact or expert witness who can offer testimony regarding OSHA requirements and the duties that may or may not exist or be owed by any individual. There are no pleadings or responses to discovery that identify the capacity in which the Plaintiffs’ claim Mr. Garner to have any duty or the methods of facts which were a violation of any duty contained in 29 CFR 1926.451. There is no evidence that Mr. Garner was ever cited by OSHA for any OSHA violation regarding the construction project where the incident occurred. No such citation against Mr. Garner had ever been plead or alleged in discovery responses. Further there is no reference in the discovery responses of the Plaintiffs to the GUIDE which the Plaintiffs are asking the Court to take judicial notice of the GUIDE. DISCOVERY RESPONSES OF THE PLAINTIFFS FAILED TO DESIGNATE A FACT OR EXPERT WITNESS WITH ANY KNOWELDGE OF THE APPPLIABILTIY OF 29 CFR 1926.451 To utilize either 29 CFR 1926.451 or the GUIDE it would take a properly designated and expert witness with sufficient expertise to testify as to Mr. Garner’s duty, if any, under 29 CFR 1926.451. Additionally, under OSHA regulations there are multiple theories which could potentially be aregued regarding why Mr. Garner has any duty and there are literally hundreds and hundreds of requirements of OSHA regarding construction. None of those theories have ever been disclosed in pleadings, discovery response or through designation of fact or expert witnesses. PRAYER Movant Garner would request the Court deny the motion to take judicial notice of 29 CFR 1926.451 or the GUIDE for the reasons referenced herein. 6341 Stewart Rd. #265 Galveston, TX 77551 Tel: (281) 924-8786 By: TOM DICKENS State Bar No. 05820800 TomDickensLaw@gmail.com Attorney for Respondent Certificate of Service I certify that a true copy of this Notice of Intent to Take Oral Deposition of KENNETH JOHNSON was served in accordance with rule 21a of the Texas Rules of Civil Procedure on the following on February 15, 2020. Eric D. Nielsen Shea Palavan 9800 Northwest Frwy, Suite 314 Houston, Texas 77092 Tel: (713) 524-4800 Fax: (888) 587-9443 Email: eric@nielsentriallaw.com TOM DICKENS Attorney for Respondent