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UNITED STATES v. PITT-DESMOINES

July 7, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
PITT-DesMOINES, INC., Defendant.



The opinion of the court was delivered by: WILLIAMS

 In a Memorandum Opinion and Order issued on June 12, 1997, the court denied various motions filed by Defendant Pitt-Des Moines, Inc. ("PDM") to dismiss the indictment in this case. The court now rules on a number of motions in limine filed by PDM and by Plaintiff United States of America ("government").

 Background

 This case stems from a construction accident that killed two ironworkers. The two workers were helping build a United States postal facility in downtown Chicago ("Post Office"). The general contractor in charge of the project had hired PDM to fabricate and erect structural steel members. On November 3, 1993 some of these steel members collapsed, killing two ironworkers. The indictment charges that PDM willfully violated federal safety standards, and that this violation caused the deaths of the two workers, thereby subjecting PDM to criminal liability under the Occupational Safety and Health Act of 1970 ("OSH Act").

 
The government expects that the evidence at trial will show (and will not be disputed) that PDM used the following basic and more-or-less standard procedures for erecting the structural steel on the post office project. First, the connectors (also called the "raising gang") erect the steel members; as cranes lift steel pieces, the connectors put them in place and make connections to hold the pieces together temporarily until more permanent connections can be made. Once a connection is made, the lines holding the steel pieces are released. Next, the bolters (or "bolt-up crew") come through and make sure the proper size bolts are in place; they replace any wrong-sized bolts used by the raising gang and insert and tighten additional bolts. The ironworkers then "plumb-up," or align the structure. Finally, the welders weld the connections to make the structure permanent.
 
The evidence will also show (and, again, will not be seriously disputed) that the immediate cause of [the collapse of steel members on November 3, 1993] was the failure of a temporary connection between two steel members before it was secured by the bolt-up crew. More specifically, the collapse was triggered by the failure of a connection between a very large horizontal collector beam and a vertical column web ("Collector Beam A-3550" and "Column A-1469," as they are identified in the design drawings). An L-shaped erection angle ("Erection Angle A-1285")--commonly known as a "seat angle" or "seat lug"--was attached to the column web and served as a ledge on which the collector beam rested. The collapse occurred when this erection angle failed, i.e., bent or folded, and the collector beam slid off. [The connection between Collector Beam A-3550 and Column A-1469] was made more than a day before the collapse, and in the interim PDM had erected additional floor beams and columns, which connected to Collector Beam A-355. Thus, the erection angle failed under the weight of the additional steel, and when it did the collector beam fell and the many steel members connected to the collector beam fell with it.

 (Gov't's Mots. in Lim. at 2-3.) This collapse killed two ironworkers.

 The government alleges that this collapse would not have occurred if PDM had bolted the collector beam to the erection angle in a manner consistent with standards promulgated pursuant to the OSH Act. Among other things, these regulations provide that:

 
During the final placing of solid web structural members, the load shall not be released from the hoisting line until the members are secured with not less than two bolts, or the equivalent at each connection and drawn up wrench tight.

 29 C.F.R. § 1926.751(a) ("the connection rule" *fn1" ). The regulations also provide that:

 
The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

 29 C.F.R. § 1926.21(b)(2) ("the training rule").

 The indictment alleges that PDM violated a provision of the OSH Act imposing criminal penalties on employers who willfully violate regulations promulgated under the OSH Act where the violation causes the death of an employee. Specifically, the OSH Act provides that:

 
Any employer who willfully violates any standard, rule, or order promulgated pursuant to [the OSH Act], or of any regulations prescribed pursuant to [the OSH Act], and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $ 10,000 or by imprisonment for not more than six months, or by both.

 29 U.S.C. § 666(e) ("Section 666(e)"). In order for the jury to convict PDM of violating Section 666(e), the government will have to prove beyond a reasonable doubt that:

 
(1) PDM violated the connection rule, or the training rule, or both; and
 
(2) the violation was willful; and
 
(3) the violation was the cause in fact of the deaths of the two ironworkers; and
 
(4) the violation was the legal cause of the deaths of the two ironworkers. *fn2"

 The Government's Motions in Limine

 The government has filed three motions in limine, concerning other causes of the fatal collapse, the necessity of OSH Act standards, and industry practices.

 I. OTHER CAUSES OF THE FATAL COLLAPSE

 The government moves the court to exclude evidence and argument suggesting that Erection Angle A-1285 was improperly designed, and that this improper design caused the collapse of steel members on November 3, 1993 ("the collapse"). More generally, the government moves the court to exclude evidence of other possible causes of the collapse. The government argues that such evidence is irrelevant under Rules 401 and 402 of the Federal Rules of Evidence, and that such evidence is confusing and misleading under Rule 403 of the Federal Rules of Evidence. In response, PDM argues that the design of Erection Angle A-1285 is relevant to (1) whether PDM willfully violated the connection rule and (2) whether PDM's alleged violation caused the death of the two ironworkers. The court will deal with the second issue first.

 A. Causation

 In order to convict PDM of violating Section 666(e), the government will have to prove beyond a reasonable doubt that PDM willfully violated the connection rule (or the training rule), and that this violation caused the deaths of the two workers on November 3, 1993. Before discussing the specific causation issues raised by this case, it will be helpful to lay out some general principles of causation.

 1. Causation in General

 In order to convict a defendant of a criminal offense that includes a causation element, the government must prove beyond a reasonable doubt that the defendant's conduct was both the "cause in fact" and the "legal cause" of the relevant harm. See 22 C.J.S. Criminal Law § 45, at 51 (1989); Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12, at 390, 392 (2d ed. 1986); Paul R. Robinson, Criminal Law Defenses § 88(b) (1984); United States v. Neadle, 33 V.I. 328, 72 F.3d 1104, 1119-20 (3rd Cir. 1995) (Becker, J., dissenting), cert. denied, 136 L. Ed. 2d 168, 117 S. Ct. 238 (1996); United States v. Spinney, 795 F.2d 1410, 1415 (9th Cir. 1986).

 To prove that a defendant's conduct was the "cause in fact" of a harm, the government usually must demonstrate that the defendant's conduct was the "but-for cause" of the harm. In other words, the government must show that but for the defendant's conduct, the harm would not have occurred. See 22 C.J.S. at 51; LaFave & Scott at 390, 392, 393-94; Robinson §§ 88(a)-88(d)(1). A defendant rebuts this argument by showing that the harm would have occurred in any event, regardless of the defendant's conduct. In certain highly unusual cases, it is logically impossible for the government to prove "but-for" causation because "two causes, each alone sufficient to bring about the harmful result, operated together to cause it." LaFave & Scott at 394. *fn3" In such cases, the government may still prove cause in fact by demonstrating that the defendant's conduct was a "substantial factor" in bringing about the harm. Id. at 394-95. *fn4" In the absence of such special causation problems, there is no need to employ the substantial factor test, because the "but-for cause" of a harm is always a substantial factor in bringing about the harm. Id.; see Neadle, 72 F.3d at 1120 (Becker, J., dissenting) ("Because the facts do not present any special causation problems, I need only apply the standard 'but for' test.").

 To prove that a defendant's conduct was the "legal cause" (or "proximate cause") of a harm, the government must prove that the harm was a foreseeable and natural result of the conduct. 22 C.J.S. Criminal Law § 45 at 51; see Spinney, 795 F.2d at 1416 (defendant's conduct was legal cause of death because death was foreseeable result of conduct). To convict a defendant of involuntary manslaughter, for example, the government must prove that the victim's death was "within the risk foreseeably created by the accused's conduct." United States v. Main, 113 F.3d 1046, 1049 (9th Cir. 1997) (citation omitted); see LaFave & Scott at 390, 392-93. Thus, "even where a but-for relation exists, a defendant may yet escape liability if the harmful result caused is so remote or accidental in its manner of occurrence as to make it unjust to hold the defendant liable for it." Robinson § 88(b) (footnote omitted).

 Although the "substantial factor test" was developed to address some unusual cases in the cause-in-fact context, as explained above, this test has apparently spilled over into the legal-cause context in some recent cases. In Main, for example, the Ninth Circuit stated that:

 
All of the authorities agree that to be guilty of involuntary manslaughter the harmful result must be within the risk foreseeably created by the accused's conduct; if the physical causation is too remote, the law will not take cognizance of it. "The same result has been achieved by requiring that the accused's conduct be a substantial factor in causing the harmful result or that it be the proximate, primary, direct, efficient, or legal cause of such harmful result."

 Main, 113 F.3d at 1049 (emphasis added) (citation omitted). Relying on these concepts, the Ninth Circuit developed a new jury instruction for involuntary manslaughter cases, which included the following statement: "A proximate cause is one which played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant's speed or condition or manner of driving." Id. at 1050 (emphasis added).

 While there is no denying that some recent cases have imported the substantial factor test from the cause-in-fact context and into the legal-cause context, this development seems to make little sense in terms of legal theory or logic. As explained above, the substantial factor test addresses factual, physical causation in a narrow range of cases in which "but-for" causation cannot be proven. By contrast, legal causation concerns foreseeability and fairness -- not factual, physical causation. Whether a defendant's conduct was factually, physically a substantial factor in bringing about the relevant harm has little (if any) bearing on the question of whether the harm was within the risk foreseeably created by the accused's original conduct. Causation in fact is concerned with what actually happened on the ground, while legal causation is concerned with what could have been foreseen beforehand. The substantial factor test concerns what actually happened on the ground (causation in fact), not what kinds of harms could have been foreseen (legal causation). For these reasons, the recent tendency to import the substantial factor test into the legal-cause context appears to have no basis in legal theory or logic. In any event, the court is not aware of any case or treatise explaining or justifying this tendency in theoretical or logical terms.

 Although there appear to be no published opinions defining causation under Section 666(e), the government has located a jury instruction given by then District Judge (now Circuit Judge) Terence Evans in a Section 666(e) case. According to the government, in United States v. S.A. Healy ...


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