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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 13-2115 

ALRO STEEL CORPORATION,

 Respondent.

ORDER DENYING 

RESPONDENT’S MOTION IN LIMINE 

On September 3, 2014, Respondent filed a Motion in limine to exclude the expert 

testimony of James Washam, the Secretary of Labor’s (Secretary’s) identified expert witness. 

Respondent also filed a supporting memorandum (Motion). The Secretary filed a Response in 

opposition to Respondent’s Motion, together with a supporting memorandum, dated September 

17, 2014 (Opposition). Respondent filed a Reply motion and memorandum in support of the 

Motion to exclude, on September 24, 2014 (Reply). On October 3, 2014, during a prehearing 

conference call, I advised Counsel that I had reviewed and considered the Motion, Opposition, 

and Reply. I advised that Respondent’s Motion to exclude the expert testimony of James 

Washam was denied. Mr. Washam’s apparent experience, technical, and specialized knowledge 

may “help the trier of fact to understand the evidence or to determine a fact in issue.” See 

Federal Rule of Evidence (FRE) 702(a). 

Background.

The Toledo, Ohio Area Office of the Occupational Safety and Health Administration 

(OSHA) inspected Respondent’s job site, located at 3003 Airport Highway, Toledo, Ohio 43609, 

on July 12, 2013. On November 14, 2013, OSHA issued to Respondent a one item serious 
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citation, with subparts, and notification of penalty (citation). The serious citation items allege 

that, on or about July 10, 2013, at the jobsite, Respondent violated standards regarding the 

control of hazardous energy (lockout / tagout) exposing employees to caught-in and amputation 

hazards if the saws unexpectedly started while changing the machines’ blades.1 The total 

penalty proposed was $4,250.00. Respondent filed a Notice of Contest. 

The Secretary filed a Complaint, attaching and adopting by reference the November 14, 

2013 serious citation. Respondent filed an Answer denying specific Complaint allegations and 

asserting the following affirmative defenses, (1) insufficient service of process, (2) failure to 

state a claim upon which relief can be granted, (3) inspection procedures noncompliant with 

section 8(a) of the Act, (4) alleged violations not described with reasonable particularity, (5) 

claims barred by the statute of limitations, (6) cited regulations unenforceable as 

unconstitutionally vague, and (7) citation items 1(a) and 1(b) are duplicative and must be 

dismissed as they arise from a single violative act. A Notice of Rescheduled Hearing, 

Scheduling Order and Special Notices issued setting the hearing in this matter for October 15 

and 16, 2014. 

Respondent filed a Motion In Limine to preclude the expert testimony of James Washam 

regarding “(1) his interpretation of the lockout standard, (2) the specific operation of the subject 

band saws, and (3) his understanding of the operation of other band saws and /or their generic 

electrical problem scenarios.” Motion at p. 3. 

 

1 Citation I, item 1(a), alleges a violation of Standard 1910.147(c)(4)(i): “Procedures were not developed, 

documented and utilized for the control of potentially hazardous energy when employees were engaged in 

activities covered by this section: (a) . . . the employer did not ensure that energy control procedures were utilized 

to control hazardous energy when employees engaged in blade changing activities on the Amada (Model HA250W) manufactured horizontal band saw . . . [and] (b) . . . on the HEM, Inc. (Model V125HA-1) #1191 

manufactured vertical band saw.” 

Citation I, item 1(b), alleges a violation of Standard 1910.147(d)(3): “All energy isolating devices that were needed 

to control the energy to the machine or equipment were not physically located and operated in such a manner as 

to isolate the machine or equipment from the energy source(s): (a) . . . the employer did not ensure that 

employees isolated energy sources on the Amanda (Model HA-250W) manufactured horizontal band saw . . . 

[and] (b) . . . on the HEM, Inc. (Model V125HA-1) #1191 manufactured vertical band saw prior to engaging in blade 

changing activities.” 

Each citation violation described alleges that “employees were exposed to caught-in and amputation hazards if the 

saw were to unexpectedly start while changing the machine’s blade.” 
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In its Motion, Respondent states that in this case the Secretary contends that 

Respondent’s blade changing procedures can result in the unexpected energizing of the saws 

where the power is not locked out at the main disconnect. Respondent disagrees with the 

Secretary’s contention. To the contrary, Respondent contends that the lockout standard does not 

apply to the cited activities as there can be no unexpected energizing when the subject machines 

are locked out at the control panel. Motion at p. 8; Reply at p. 1-2. Respondent argues that 

pursuant to FRE 702, Mr. Washam’s opinions and testimony regarding the cited machines and 

regarding other machines are inadmissible as unreliable and untrustworthy. Motion at p. 15. 

Respondent anticipates that the Secretary’s expert witness Washam will testify, regarding 

that lockout standard, that there is a “bright line” rule that machines locked out using motor 

circuitry devices automatically violate the standard. Motion at p. 5. Respondent argues that Mr. 

Washam’s interpretation of the lockout standard constitutes an impermissible legal opinion. 

Therefore, he should be precluded from testifying as to his interpretation of the lockout standard 

and whether Respondent was in violation of the standard. Motion at p. 8. 

Respondent notes that it is not anticipated that Mr. Washam will offer testimony 

regarding the specific operation of the subject machines. Nevertheless, Respondent argues that 

Mr. Washam must be precluded from testifying at to the operation of the cited machines.2

 

Respondent contends that Mr. Washam’s opinion in this case is based on his generic 

understanding of other band saws and not on the electrical design of the specific band saws cited. 

Motion at pp. 8-11, 14; Reply at p. 4. 

Respondent contends that Mr. Washam must be precluded from testifying about generic 

“odd” problems regarding other band saws, as this testimony is irrelevant to the operation of the 

cited machines in this case. Respondent argues that Mr. Washam’s opinion that the cited 

machines will start up if not locked out at the main power disconnect is speculative as it is based 

on anecdotal electrical problems arising in other machines. Motion at pp. 11-14; Reply at p. 4. 

 

2 Respondent argues that Mr. Washam did not visit the worksite, inspect the subject machines or their operation, or 

review the schematics for the two cited band saws. Respondent contends that Mr. Washam does not have the 

educational background to opine regarding the electrical design of the cited band saws. Motion at pp. 8-11; Reply at 

pg. 3-4.
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In its Opposition, the Secretary states that Mr. Washam, the Secretary’s identified expert 

witness, will opine that Respondent is relying on a control circuit device to isolate electrical 

energy during the cited blade changing procedures. The Secretary argues that the hazardous 

energy standard is clear that control circuit type devices are not energy isolating devices. See 29 

CFR § 1910.147(b). Therefore, the Secretary does not intend to elicit testimony from Mr. 

Washam regarding the interpretation of the standard. Opposition at p. 1. 

The Secretary notes that it is within the broad discretion of the trial court to admit expert 

testimony. The Secretary argues that there is no reasonable basis to exclude Mr. Washam’s 

expert testimony in this case. Opposition at p. 2. 

Discussion

Pursuant to Commission Rule 71, Federal Rules of Evidence are applicable to 

Commission proceedings. Federal Rule of Evidence 702, Testimony of Expert Witnesses, states: 

A witness who is qualified as an expert witness 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 expert has reliably applied the principles and methods to the facts of the case.

The Advisory Committee Notes to FRE 702 state that when expert witness testimony is 

based “solely or primarily” on experience, “the witness must explain how that experience leads 

to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that 

experience is reliably applied to the facts.” The Advisory Committee Notes further provide that 

the “facts or data” language in FRE Rule 702 is “broad enough to allow an expert to rely on 

hypothetical facts that are supported by evidence.” Citing the original Advisory Committee Note 

to FRE 703. Where facts are disputed, experts may reach different conclusions based on 

different versions of the facts. See FRE 702 (Advisory Committee Notes: 2000 Amendments). 

Federal Rule of Evidence 704(a), states that “[a]n opinion is not objectionable just 

because it embraces an ultimate issue.” 
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In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), the Supreme 

Court held that the Federal Rules of Evidence, especially FRE 702, assigns to the trial judge a 

“gatekeeping role” to ensure that any and all expert scientific testimony or evidence admitted 

“rests on a reliable foundation and is relevant to the task at hand.” In Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 141, 147-49 (1999) the Supreme Court clarified that the trial court’s 

gatekeeping role applies to all expert testimony, and is not limited to scientific expert testimony. 

Regarding the gatekeeping role, the trial judge has “considerable leeway” in deciding 

what factors to consider when determining the reliability of an expert witness. Kumho 526 U.S. 

at 152; Bureau v. State Farm Fire and Casualty Co., 129 Fed.Appx. 972, 976 (C.A.6 Mich. 

2005). The trial court may permit voir dire testimony regarding an expert’s qualifications and 

methodology, and then weight the testimony based, in part, on the methods employed by the 

expert. See United States v. Demjanjuk, 367 F.3d 623, 634-35 (6th Cir. 2004) 

Noting the role of the adversary system and the capabilities of the fact finder in 

evaluating expert evidence, the Daubert Court stated: 

Vigorous cross-examination, presentation of contrary evidence, and careful instruction on 

the burden of proof are the traditional and appropriate means of attacking shaky but 

admissible evidence. 509 U.S. at 596. 

While an expert opinion may be admissible, the “weight to be accorded expert opinion 

evidence is solely within the discretion of the judge sitting without a jury.” American Milling 

Co. v. Trustee, 623 F.3d 570, 573-74 (8th Cir. 2010)(internal quotes and citation omitted), 

I have carefully considered the positions articulated by the parties. Based upon the formal 

papers, Motion, Opposition, and Reply, I find that Mr. Washam’s apparent experience, technical, 

and specialized knowledge may “help the trier of fact to understand the evidence or to determine 

a fact in issue.” See FRE 702(a). Therefore, Respondent’s Motion is denied. 

In the instant case, the parties disagree regarding whether Respondent violated the cited 

standards, at the jobsite, on or about July 10, 2013. Mr. Washam’s anticipated opinion 

testimony, as set forth in the Motion and Opposition, may be reasonably viewed as setting forth 

Mr. Washam’s opinion regarding whether the cited standards would be violated based upon 

specified hypothetical facts. This would be permissible expert testimony. Pursuant to FRE 704 
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“an expert may offer his opinion as to facts that, if found, would support a conclusion that the 

legal standard at issue was satisfied, but he may not testify as to whether the legal standard has 

been satisfied.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 

1997). See also Berckeley Investment Group, Ltd. V. Colkitt, 455 F.3d 195, 217 (3rd Cir. 

2006)(Under FRE 704 an expert witness is prohibited from giving a legal opinion; however, 

expert testimony that “embraces an ultimate issue to be decided by the trier of fact” is permitted). 

Generally, testimony regarding industry customs and practices are proper subjects for expert 

testimony, where the testimony is probative but not determinative. See Berckeley Investment 

Group, Ltd. V. Colkitt, 455 F.3d 195, 218-19 (3rd Cir. 2006). See also, Pelletier v. Main Street 

Textiles, LP, 470 F.3d 48, 55 (1st Cir. 2006). 

Order

Respondent’s Motion In Limine is denied. Mr. Washam’s apparent experience, technical, 

and specialized knowledge may “help the trier of fact to understand the evidence or to determine 

a fact in issue.” See FRE 702(a). At the hearing, Respondent will have the opportunity to 

conduct a voir dire examination of Mr. Washam. Respondent also will have the opportunity to 

cross examine Mr. Washam and challenge the basis for his opinions. I will consider and rule on 

objections, if any, to Mr. Washam’s testimony on direct and cross-examination. I will determine 

the appropriate weight to attribute to Mr. Washam’s testimony. 3

For these reasons, Respondent’s Motion In Limine to exclude the expert testimony of 

James Washam is denied. 

SO ORDERED.

 /s/ Carol A. Baumerich

Dated: October 14, 2014 Honorable Carol A. Baumerich

Washington, D.C. Judge, OSHRC 

 

3 This Order is without prejudice to Respondent’s right to raise objections to Mr. Washam’s testimony on grounds 

not set forth in Respondent’s Motion, or to renew objections set forth in the Motion based upon a more fully 

developed record at the hearing.