Secretary of Labor v. Cemex, Inc.

Plain-English summary

The Secretary disclosed an MSHA engineer as an expert witness two days after the business-day deadline in the hearing notice. Cemex moved to exclude the witness, arguing that the late disclosure was unfair and conflicted with discovery and summary-decision rules. Judge Priscilla M. Rae found that the disclosure still occurred more than 20 days before the hearing, involved an issue Cemex had already raised, and showed no bad faith or actual legal prejudice. Because excluding evidence is an extreme sanction, the Judge denied the motion and allowed a continuance so Cemex could depose the expert and present rebuttal testimony.

Decision snapshot

• Governing authority: 29 C.F.R. §§ 2700.56(e), 2700.67(a)
• Outcome: Cemex's motion to exclude the expert was denied, with a continuance available to cure any prejudice.
• Key point: A short, non-willful disclosure delay does not justify excluding important testimony when additional discovery and a continuance can provide a complete remedy.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9956 / FAX: 202-434-9949

December 8, 2015

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

CEMEX
INC.,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2014-453-M

A.C.
No. 01-00016-357166

Mine:
Demopolis Plant CEMEX Inc.

ORDER DENYING
RESPONDENT’S MOTION IN LIMINE

The above-captioned case is before me
upon the Secretary’s petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C.
§ 815(d).

This case is currently scheduled for
hearing on December 22, 2015. The Notice of Hearing issued several months ago
instructed the parties to exchange a list of witnesses at least 20 business
days prior to the start of the hearing (i.e., by November 23, 2015). On
November 20, the Respondent filed a Motion for Summary Decision. On November
25, two days after the deadline to disclose witnesses, the Secretary notified
the Respondent of his intent to call Thomas Barkand as an expert witness to
respond to the Motion for Summary Decision. The Respondent has now filed a
Motion in Limine asking me to exclude Barkand’s testimony.

Parties’
Positions

The Respondent argues that the
Secretary’s late disclosure of Barkand as a witness violates the deadline set
forth in my Notice of Hearing; violates Commission Procedural Rule 56(e), 29
C.F.R. § 2700.56(e), which requires discovery to be completed at least 20 days
before the hearing and states that discovery shall not unduly delay or impede
disposition of cases; and contradicts the spirit of Commission Procedural Rule
67(a), 29 C.F.R. § 2700.67(a), which requires motions for summary disposition
to be filed at least 25 days before the hearing, therefore contemplating that
the parties will have established the evidentiary record by then. The
Respondent further asserts that allowing Barkand to testify would be unfair,
prejudicial, and would set a dangerous precedent for future cases.

The Secretary argues that the
Commission’s procedural rules have not been violated and that the addition of
Barkand as a witness will not conflict with the Commission’s flexible evidentiary
rules or set a dangerous precedent. The Secretary concedes that the witness was
disclosed two days after the deadline set forth in the Notice of Hearing, but asserts
that the late disclosure was a mere oversight rectified by the Solicitor as
soon as he realized that the deadline was calculated in business days
rather than regular days. The Secretary further contends that Barkand has been
made available for deposition and that the Respondent has failed to make a
showing of actual prejudice.

Discussion

Although
the Secretary failed to promptly disclose Barkand as a witness, the disclosure
nonetheless falls within the timeframe specified by the Commission’s procedural
rules for completion of discovery. Discovery must be completed at least 20 days
prior to the start of the hearing under Rule 56(e). 29 C.F.R. § 2700.56(e). The
witness was identified on November 25, which was more than 20 days before the
start of the scheduled December 22 hearing.

The
last-minute disclosure violated the deadline set forth in my Notice of Hearing.
However, the Commission has indicated that the exclusion of evidence is an
“extreme” sanction not normally to be imposed absent a showing of bad faith on
the part of the proponent of the evidence. Gray v. N. Fork Coal Corp.,
35 FMSHRC 2349, 2360 (Aug. 2013) (citing In re: Paoli Railroad Yards
PCB Litigation, 35 F.3d 717, 791-92 (3d Cir. 1994); Meyers v. Pennypack
Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977)). In Gray
v. North Fork, the Commission held that the testimony of a late-disclosed
witness should have been admitted in light of the lack of surprise to the
opposing party, the importance of the testimony, the absence of bad faith or
willfulness on the part of the proponent of the testimony, and the ability to
cure any resulting prejudice. Id.; see also Jim Walter Res., Inc.,
37 FMSHRC 1958, 1965 (Sept. 2015) (permitting late disclosure absent showing of
legal prejudice).

In this case, the subject matter of the
testimony in question should not be a surprise to the Respondent, given that
the main issue the witness will address (whether certain equipment falls within
the regulatory definition of a “hoist”) was raised during depositions and in
the Respondent’s Motion for Summary Decision. The testimony will be important
to holding a fair and complete trial. The Respondent has not shown that the
Secretary acted in bad faith or willfully disregarded my order in identifying
Barkand as a witness two days late. Any prejudice resulting from the late
disclosure can be cured by the less extreme sanction of continuing the hearing
and discovery deadlines to give the Respondent time to address Barkand’s
testimony, and the Respondent will be granted a continuance to depose Barkand
and call any rebuttal witness(es) if desired.

For the foregoing reasons, the
Respondent’s Motion in Limine is DENIED.   

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Timothy J. Turner, Esq., U.S.
Department of Labor, Office of the Solicitor, Denver MLBP, 1244 Speer
Boulevard, Suite 216, Denver, CO 80204

Michael T. Cimino, Esq., Jackson
Kelly PLLC, 500 Lee Street East, Suite 1600, P.O. Box 553, Charleston, WV 25322