UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor, 

 

 Complainant, 

 

 v. 

 Docket No. 18-0731 

 

UHS OF DELAWARE, INC. and PREMIER 

BEHAVIORAL HEALTH SOULDATIONS OF 

FLORIDA, INC. dba SUNCOAST BEHAVIORAL

HEALTH CENTER, 

 

Respondent. 

ORDER DENYING RESPONDENT’S MOTION IN LIMINE 

TO EXCLUDE THE TESTIMONY OF DR. HOWARD L. FORMAN

TO THE EXTENT INDICATED HEREIN

I. FACTS

On April 24, 2018, OSHA issued one repeat citation to Respondent alleging a violation of 

Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (the Act). The Citation 

alleged that employees at Suncoast’s worksite were exposed to the hazard of workplace violence 

caused by patients. Thereafter, Respondent filed its notice of contest. 

On March 19, 2019, Complainant’s expert, Dr. Howard L. Forman, issued his expert 

written report. (Respondent’s Motion in Exclude, at Ex. A). 

On April 2, 2019, Respondent deposed Dr. Forman. (Respondent’s Motion in Exclude, at 

Ex. B). 

On April 12, 2019, the Respondent filed his Motion in Limine to Exclude the Testimony 

of Dr. Howard L. Forman. (Motion to Exclude). Respondent argues that Dr. Forman’s expert 

testimony should be excluded because: (1) Dr. Forman “lacks the expertise, training and/or 

experience to render opinions related to staff safety in a workplace environment involving 
- 2 - 

psychiatric patients; and (2) his testimony consists of legal conclusions, personal opinions, and 

speculation and does not assist the trier of fact through the application of scientific, technical or 

specialized expertise.” (Motion to Exclude, at 2). Respondent further argues that Dr. “Forman is 

not qualified to testify competently regarding the issue of whether Suncoast’s workplace 

violence policies and procedures were adequate to address patient to staff aggression.”1

 

Respondent asserts that he “also has conducted no analysis or relevant studies” that “looked at 

feasible means of abatement that would eliminate or materially reduce the hazard of patient to 

staff aggression.” (Motion to Exclude, at 10). Respondent also argues that OSHA “cannot meet 

its burden of proving [Dr.] Forman is qualified as an expert to render opinions concerning 

feasible means of abatement on the issue of workplace violence.” (Motion to Exclude, at 10). 

Respondent summarizes six opinions presented by Dr. Forman in his expert report and identifies 

several discrepancies with regard to these opinions. (Motion to Exclude, at 5-9; Ex. A). 

Respondent argues that all of Dr. Forman’s opinions are unreliable. (Motion to Exclude, at 12). 

On April 19, 2019, Complainant filed his Response in Opposition to Respondent’s 

Motion in Limine to Exclude the Testimony of Complainant’s Expert Dr. Howard L. Forman, 

M.D. (Response to Motion to Exclude). Complainant argues that Respondent’s Motion to 

Exclude should be denied as Dr. Forman is qualified as an expert based on his impressive 

education, training and experience, including specialized knowledge regarding causes and 

prevention of patient on staff violence in a psychiatric hospital setting. Complainant argues that 

Dr. Forman’s opinions are based on sufficient facts and data gained from his overall education, 

1 Respondent asserts that Dr. Forman “has never worked at a standalone behavioral health hospital that does not 

have forensic psychiatric patients.” (Motion to Exclude, at 4). It asserts that Dr. Forman “has limited knowledge or 

experience in dealing with specific policies and procedures associated with workplace violence.” (Motion to 

Exclude, at 5). Complainant asserts that Dr. Forman has completed a “fellowship in forensic psychiatry ... at a 

standalone psychiatric hospital ... known as the Bronx Psychiatric Center.” Response to Motion to Exclude, at 5). 

(emphasis in original).
- 3 - 

training, and experience. (Response to Motion to Exclude). 

Pleadings have been filed and discovery has closed. 

The trial on the merits in this case commenced April 23, 2019 and continued through 

May 2, 2019.2 On April 30, 2019, the Secretary closed his case in chief without calling Dr. 

Forman to testify; but stated his intent to call Dr. Forman as a rebuttal expert.3 (Tr. 1954). The 

trial is scheduled to continue on August 20, 2019. (Tr. 2598). 

II. DISCUSSION

Respondent asserts that Dr. Forman’s testimony should be excluded because Dr. Forman 

lacks the expertise, training and/or experience to render opinions related to patient to staff 

aggression and that his opinions are improper under the Federal Rules of Evidence, Rule 702. 

The Court disagrees. Dr. Forman is a highly qualified psychiatrist with over 15 years of medical 

and psychiatric education, training and experience. (Response to Motion to Exclude, at 1, 4-12; 

Ex. 82; Motion to Exclude, Ex. A). Dr. Forman’s specialized knowledge qualifies him to testify 

regarding causes and prevention of patient on staff violence in a psychiatric hospital setting. 

(Ex. 82; Motion to Exclude, at A, at 2-6; Response to Motion to Exclude). The Court also finds 

Dr. Forman qualified as an expert to render opinions concerning feasible means of abatement on 

the issue of workplace violence. (Ex. 82; Motion to Exclude, at A, at 2-6; Response to Motion to 

Exclude). The Court further finds Dr. Forman is qualified to testify whether Respondent’s 

workplace violence policies and procedures were adequate to address patient to staff aggression, 

including what clinical treatment is appropriate to address aggression and whether Suncoast 

provided such appropriate clinical treatment. The Court finds that Complainant has satisfied 

2 Dr. Forman was present in the courtroom at least on April 23, 2019. (Tr. 61). 3 Respondent has objected to the admission of Dr. Forman’s expert report at Exhibit 83. Complainant has stated his 

intention to set the foundation for Dr. Forman’s expert report and move to enter it into evidence when Dr. Forman is 

called to testify as a rebuttal witness. (Tr. 36-37, 1954-55). 
- 4 - 

Fed. R. Evid. 702(a) with regard to Dr. Forman’s testimony on these topics. The Court further 

finds that Dr. Forman’s testimony on these topics is also based on sufficient facts or data, thereby 

satisfying Fed. R. Evid. 702(b). (Ex. 82; Motion to Exclude, at A; Response to Motion to 

Exclude; Courtroom testimony observed by Dr. Forman). 

Second, Respondent states that, because Dr. Forman’s testimony does not contain any 

analysis requiring specialized knowledge, Complainant cannot show that his opinion would be 

useful in Court as required under the Federal Rules of Evidence 702.4 (Motion to Exclude, at 2, 

11). There is no dispositive requirement that a non-scientist expert use a particular scientific 

method to formulate the expert’s opinions; but the methodology used must be reliable. Kumho 

Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Experts may present expert testimony on a 

multitude of non-scientific topics. Id. at 150. Trial judges have great latitude to decide whether 

an expert’s testimony is reliable. Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 

F.3d 120, 133 (2nd Cir. 2006) [internal citations omitted]. Any such inadequacy regarding as to 

whether Dr. Forman’s opinions are based on scientific, technical, or other specialized knowledge 

can be addressed by voir dire at the trial before Complainant offers Dr. Forman’s testimony or 

expert report into evidence, or by cross-examination. See Yankee Atomic Elec. Co. v. U.S., No. 

98-126C, 2004 WL 1535686 at *7 (Fed. Cl. June 28, 2004). The use of “vigorous crossexamination” and “presentation of contrary evidence” are among the means for “attacking shaky, 

but admissible evidence.” Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 596 (1993). 

Respondent’s objections to Dr. Forman’s opinions and testimony not being helpful to the 

4 Fed. R. Evid. 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the 

form of an opinion or otherwise, if: (a) the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient 

facts or data, (c) the testimony is the product of reliable principles and methods; and (d) the witness has reliably 

applied the principles and methods to the facts of the case.
- 5 - 

Court do not necessarily raise real Daubert or Kumho Tire reliability issues. They may go to 

weight, not admissibility. See Taylor v. TECO Barge Line, Inc. et al., 2009 WL 1684420 at * 4 

(W.D. Ky. June 16, 2009) (questions regarding expert’s precise experience on various bodies of 

water are valid questions for cross-examination, but not determinative of expert status). 

Notwithstanding the above, expert testimony must also be reliable. (Fed. R. Evid. 702(c)

and (d)). Respondent argues Dr. Forman’s opinions are “completely unreliable” and have not 

been shown to have been “based on sound and acceptable methodologies.” (Motion to Exclude, 

at 5,12). At this point in time, the Court is not making a finding that Dr. Forman’s opinions are 

all sufficiently reliable to the extent that his testimony and expert written report are the product 

of reliable principles and methods, and that he has reliably applied the principles and methods to 

the facts of this case. Such a finding shall await his courtroom testimony, including voir dire and 

cross-examination. 

The Commission normally accords wide latitude to administrative law judges in 

determining whether proffered expert testimony will be helpful to the Court. See Sec’y of Lab. v. 

U.S. Postal Serv., 21 BNA OSHC 1767 (No. 04-0316, 2006). Based upon the material before it, 

the Court finds that Dr. Forman’s expected testimony will assist it through the application of his 

scientific, technical or specialized expertise on the matters and topics set forth on pages 3 

through 4 above and herein.5 (Ex. 82; Motion to Exclude, at A; Response to Motion to Exclude). 

In addition, this case will be handled by a bench trial. There is no concern with 

protecting a jury from “being bamboozled by technical evidence of dubious merit.” Am. Home 

Assurance Co. v. Masters’ Ships Mgmt. S.A. et al., No. 03 Civ. 0618(JFK), 2005 WL 159592, at 

*1 (S.D.N.Y. Jan. 25, 2005), SmithKline Beecham Corp. v. Apotex Corp., 247 F.Supp.2d 1011, 

5 Subject to Complainant showing at trial that Fed. R. Evid. 702(c) and (d) have been satisfied. 
- 6 - 

1042 (N.D.Ill.2003). Whereas, in a jury trial, expert testimony on the law may be excluded in 

part to prevent jury confusion, the primary reason for exclusion of such testimony in a bench trial 

is that it invades the province of the court and is not helpful. Marx Co., Inc. v. Diners’ Club Inc.,

550 F.2d 505, 509-10 (2nd Cir. 1977). The fact that this is a bench trial weighs heavily in favor 

of denying Respondent’s Motion to Exclude to the extent indicated herein. Other issues 

regarding Dr. Forman’s testimony, beyond his qualifications to provide testimony based upon 

sufficient facts or data that will be useful to the Court on the matters and topics set forth at pages 

3-4 above and herein,6 may still be raised at trial by Respondent and addressed by the Court, if 

and when they arise at trial. See Lifetime Homes, Inc. v. Residential Dev. Corp., 510 F. Supp.2d 

794, 811 (M.D. Fl. 2007). 

III. CONCLUSION

The Court finds that Complainant has presented information pertaining to the expert 

opinions of Dr. Forman sufficient to justify the Court not granting the Respondent’s Motion to 

Exclude to the extent indicated herein.

For all of the foregoing reasons, Respondent’s Motion to Exclude is found by the Court 

to be without merit to the extent indicated herein. 

IV. ORDER

WHEREFORE IT IS ORDERED THAT Respondent’s Motion to Exclude is DENIED, 

with prejudice, to the extent that the Court has found Dr. Forman qualified to present expert 

testimony based on sufficient facts or data that will be useful to the Court with regard to the 

matters and topics identified on pages 3 through 4 above and herein;7 and 

IT IS FURTHER ORDERED THAT other issues regarding Dr. Forman’s expert 

6 Subject to Complainant showing at trial that Fed. R. Evid. 702(c)(d) have been satisfied.

7 Subject to Complainant showing at trial that Fed. R. Evid. 702(c)(d) have been satisfied. 
- 7 - 

testimony, beyond the Court finding herein that Dr. Forman has satisfied Fed. R. Evid. 702(a) 

and (b) on the matters and topics set forth at pages 3-4 above and herein, may still be raised at 

trial by Respondent; e.g. whether or not Dr. Forman’s expert testimony and written expert report 

satisfy Fed. R. Evid. 702(c) and (d); or whether Dr. Forman’s testimony constitutes permissible 

rebuttal expert testimony.

8

SO ORDERED.

 /s/

 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

Dated: July 19, 2019 

 Washington, D.C. 

8 See p. 5 herein.