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Federal Insurance Company, As v. Handwerk Site Contractors

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 15, 2013

FEDERAL INSURANCE COMPANY, AS SUBROGEE OF FULTON FINANCIAL CORPORATION PLAINTIFF,
v.
HANDWERK SITE CONTRACTORS, AND UGI UTILITIES, INC. DEFENDANTS

The opinion of the court was delivered by: (Judge Conner)

ORDER

AND NOW, this 15th day of April, 2013, upon consideration of defendant Handwerk Site Contractors' ("Handwerk") motion in limine (Doc. 116) to exclude OSHA regulation 29 C.F.R. § 1926.651 and the Pennsylvania One Call System, Inc. User's Guide, pursuant to Federal Rules of Evidence 401 and 403, and it appearing that 29 C.F.R. § 1926.651*fn1 is relevant and material to the standard of care to which defendant Handwerk should be held, see FED. R. EVID. 401 (providing that "evidence is relevant if (a) it has a tendency to make a fact more or less probable than it would without the evidence; and (b) the fact is of consequence in determining the action"), and that there are no concomitant risks of unfair prejudice, confusion, delay, or efficiency that outweigh the regulation's probative value, see FED. R. EVID. 403, and it further appearing that the Pennsylvania One Call System, Inc. User's Guide includes an express disclaimer of its use as a legal reference, and of its accuracy,*fn2 and thereby carries a risk of misleading the jury that substantially outweighs its probative value to demonstrate Handwerk's standard of care, see id., it is hereby ORDERED that:

1. Handwerk's motion in limine (Doc. 116) to exclude OSHA regulation 29 C.F.R. § 1926.651 and the Pennsylvania One Call System, Inc. User's Guide is GRANTED in part and DENIED in part as follows:

a. The motion is GRANTED with respect to the Pennsylvania One Call System, Inc. User's Guide ONLY to the extent that it may be referenced or utilized to demonstrate the standard of care to which Handwerk should be held;

b. The motion is DENIED with respect to OSHA regulation 29 C.F.R. § 1926.651.

CHRISTOPHER C. CONNER United States District Judge


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