Secretary of Labor on behalf of Jacob Hamilton v. American Mining and Tunneling, LLC

Plain-English summary

The Secretary disclosed MSHA safety specialist Steven Rogers as a rebuttal expert about the safety of Jacob Hamilton's actions roughly three weeks before the discrimination hearing. American Mining and Tunneling objected that the late notice left too little time for deposition and preparation. Judge Richard W. Manning allowed the testimony because the relevant defense emerged during recent depositions, the initially planned specialist became unavailable after a death in the family, and exclusion of critical evidence is an extreme sanction. The Secretary had to promptly serve Rogers' report, qualify him at hearing, and make him available for deposition.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.56(e)
• Outcome: Steven Rogers was permitted to testify as a rebuttal expert, subject to expedited report and deposition requirements.
• Key point: Late expert disclosure did not warrant exclusion where the delay was reasonably explained and the opposing party still had time to prepare.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577/FAX
303-844-5268

June
2, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

on behalf of JACOB HAMILTON,

Complainant

v.

AMERICAN MINING AND

TUNNELING, LLC

Respondent

DISCRIMINATION PROCEEDING

Docket No. WEST 2016-326-DM

MSHA No. WE MD 2016-04

Fire Creek Mine

Mine ID 26-02691 A4880

ORDER CONCERNING PROPOSED TESTIMONY OF STEVEN ROGERS

The hearing in this discrimination case is set
to commence on June 22, 2016. In my notice of hearing, I required the parties
to exchange witness and exhibit lists by no later than June 8, 2016. Under
Commission Procedural Rule 56(e), discovery should have been completed by June
2, 2016. 29 C.F.R. § 2700.56(e). By email on May 31, Joseph Lake, counsel for
Complainant, asked that the discovery deadline be extended until June 10
because certain individuals could not be scheduled for deposition until the
week of June 6. Donna V. Pryor, counsel for Respondent, does not oppose this
extension of the discovery period.

Late in the day on May 31, Mr. Lake also disclosed
via email that he intends to call an expert witness at the hearing and that his
written report would be produced later this week. Ms. Pryor, via email, opposed
the request because it is only about twenty-two days until the hearing,
discovery is coming to a close, and she needs this time to prepare her case. She
contends that the Complainant should have disclosed the identity of this
potential witness in response to discovery much earlier so that she could have
scheduled his deposition in May. This delay does not give her much time to
schedule a deposition and determine whether Respondent needs to call an expert
witness.

I scheduled a conference call for June 1. During
the call, Jessica Flores, counsel for Complainant, advised me that the expert she
wants to call is Steven Rogers, a safety and health specialist with MSHA in the
Vacaville, California, office. He would be called as a rebuttal witness in
response to expected testimony from Respondent’s witnesses that certain actions
taken by Jacob Hamilton, the complainant in this case, were unsafe and that he
was discharged for those unsafe actions. Rogers was not present at the mine
during the disputed events and, as I understand it, he would testify generally
about the safety of Hamilton’s actions when he discovered drill holes underground
that had not been shot during the most recent round of blasting.

Ms. Flores stated during the conference call
that she first learned of this defense during depositions of Respondent’s
witnesses taken in mid-May. She also stated that she had planned

on using a different MSHA safety specialist as a rebuttal witness
but he became unavailable because of a death in the family. Counsel stated that
the process of finding a second safety specialist to testify contributed to the
delay.

Ms. Pryor objected to Complainant’s request during
the call primarily because of the delay in notifying her that an expert would
be called. She had requested the names of potential witnesses during discovery.
She stated that she will not be able to depose Mr. Rogers next week because of
scheduling issues but that she could depose him on June 14 in Denver, if I
grant the Complainant’s request. Counsel did not indicate whether she will now
be seeking to call an expert on Respondent’s behalf.

It is ORDERED that Complainant shall be
permitted to call Steven Rogers as a rebuttal witness at the hearing on June
22-23, 2016. Although the disclosure of this witness is later than is optimal,
given the sequence of events, the delay was not unreasonable. The hearing is
three weeks away, which gives the parties time to prepare for hearing.[1]
At the hearing, Complainant will be required to qualify Rogers as an expert in
his field before he will be allowed to testify. Although Commission judges are
not bound by the Federal Rules of Evidence, I will use them as a guide. Fed. R.
Evid. 702 et seq. Complainant SHALL serve Rogers’ written report
on counsel for Respondent via email by no later than 5:00 p.m. Mountain Time on
Friday, June 3, 2016. Counsel for Complainant SHALL make Steven Rogers
available for deposition on June 14, 2016, in Denver, Colorado, or on another
date agreed to by the parties.

/s/ Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution (Via email and
USPS):

Jessica M. Flores, Esq., and Joseph Lake, Esq., Office of the Solicitor, U.S. Department of
Labor, 90 7th Street, Suite 3-700, San Francisco, CA 94103-6704   

Donna V. Pryor, Esq., Jackson Lewis, 950 17th Street, Suite 2600, Denver, CO 80202-2828

RWM

[1]
I also note that in Mark Gray v. North Fork Coal
Corp., 35 FMSHRC 2349 (August 2013), the Commission reversed a judge’s
order excluding the testimony of late-identified expert witnesses and remanded the
case back to the judge. The identities of the two proposed expert witnesses were
not disclosed to the respondent until about 15 days before the hearing. Although
that case raised issues not present in this case, the Commission held that “the
exclusion of critical evidence is an ‘extreme’ sanction, not normally to be
imposed absent a showing of willful deception or ‘flagrant disregard’ of a
court order by the proponent of the evidence.” 35 FMSHRC at 2360 (citations
omitted).