Secretary of Labor v. Ricky Bryson, Clifford Massie, and Gary Lilly, employed by Elk Run Coal Company

Plain-English summary

The Secretary asked the judge to exclude Gary Hartsog’s testimony as a sanction for alleged discovery failures involving the respondents’ expert witness. Judge Irwin Schroeder found that the parties had exchanged answers only 30 days before the hearing and that the expert’s proposed opinions and supporting documents were still unclear. He denied the motion without prejudice because excluding the testimony before the hearing would not serve discovery’s purpose, while allowing the Secretary to renew the motion at the hearing if deposition problems continued.

Decision snapshot

• Cited standard(s): No Mine Act or regulatory provision governs the substance of this discovery order.
• Outcome: The motion to exclude Gary Hartsog’s testimony was denied without prejudice.
• Key point: Exclusion is not an automatic sanction for incomplete expert discovery when expedited supplementation and a later hearing ruling can address the problem.

Full text (FMSHRC public release)

RICKY BRYSON, Employed by ELK RUN COAL COMPANY -- October 2, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001

October 2, 2003

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2003-173
Petitioner : A.C. No. 46-08402-03562 A
v. :
:
RICKY BRYSON, Employed by :
ELK RUN COAL COMPANY, :
Respondent : Black Knight II
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2003-174
Petitioner : A.C. No. 46-08402-03564 A
v. :
:
CLIFFORD MASSIE, Employed by :
ELK RUN COAL COMPANY, :
Respondent : Black Knight II
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2003-178
Petitioner : A.C. No. 46-08402-03563 A
v. :
:
GARY LILLY, Employed by :
ELK RUN COAL COMPANY, :
Respondent : Black Knight II

ORDER DENYING MOTION TO EXCLUDE WITNESS

On September 25, 2003, Petitioner filed a motion to exclude the testimony of Mr. Gary
Hartsog at the hearing now scheduled for October 21, 2003. On September 26, 2003, I convened
a telephone conference to hear arguments from both sides on this motion.

From the arguments of counsel it is clear to me that the Petitioner seeks to exclude the
testimony of Mr. Hartsog as a sanction for alleged discovery irregularities by the Respondents.
The alleged irregularities fall in the general class of failure to respond completely to written
interrogatories intended to elicit information on an expert witness. Because of normal delays in
the discovery process, answers to written interrogatories were not exchanged until 30 days before
the scheduled hearing and two weeks before the scheduled depositions. According to counsel,
the expected testimony of the Respondents' expert will focus on a diagram of roof bolt
placement. The diagram was not furnished with the answers to written interrogatories.
Respondents' answers to written interrogatories identified in a very general way the material the
expert is expected to rely upon in offering an opinion but did not identify any document in which
the expert's opinion and the reasons for that opinion were set forth.

Inquiry of Respondents' counsel as to the expert opinion to be obtained from Mr. Hartsog
produced only vague generalizations. Whether Mr. Hartsog will be able to provide expert
testimony consistent with the Daubert requirements is not clear. Counsel for Respondents
has agreed to provide additional material to Petitioner's counsel on an expedited schedule to
assist her in preparing for the depositions. I note that the Federal Rules of Civil Procedure,
Rule 26(a)(2)(C) provide that names of experts as witnesses shall be disclosed no less than
90 days before the hearing date unless the court orders otherwise. In this instance, no court order
on timing of discovery was entered.

Discovery is intended to assist the parties and the Judge in assembling a record adequate
and appropriate for reaching a reasoned decision. I believe for me to exclude now the testimony
of Mr. Hartsog from the hearing as a sanction for discovery irregularities described above would
not serve the intended purpose of discovery. The Petitioner's motion is denied without prejudice
to a renewal of the motion at the hearing in light of the actual experienced difficulties in
conducting a deposition under the circumstances.

Irwin Schroeder

Administrative Law Judge

Distribution:

Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22203

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Spilman Center, 300 Kanawha
Boulevard East, P.O. Box 273, Charleston, WV 25321-0273