UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

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HILDA L. SOLIS, Secretary of Labor, 

United States Department of Labor, 

 Complainant, 

 v. 

WAL-MART STORES INC., 

 Respondent. 

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OSHRC DOCKET 

No. 09-1013 

RESPONDENT’S POST-HEARING BRIEF
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TABLE OF CONTENTS 

Page

I. INTRODUCTION...................................................................................................................... 1

II. THE SECRETARY’S BURDEN OF PROOF.......................................................................... 5

III. ARGUMENT........................................................................................................................... 8

A. Respondent Took Reasonable Safety Precautions................................................. 8

1. Respondent’s Safety Precautions Were Well-Tailored to 

Prevent Known Risks................................................................................. 9

2. Respondent Complied with a Majority of the Secretary’s 

Recommended Abatement Measures....................................................... 11

3. Respondent Made Reasonable Efforts to Secure a Police 

Presence ................................................................................................... 13

4. The Secretary’s Criticism of Respondent’s Good Faith 

Efforts is Unfounded................................................................................ 13

B. The Secretary Has Not Made a Prima Facie Showing that 

Respondent Violated the General Duty Clause ................................................... 17

1. Respondent Did Not Expose Employees to a Hazard.............................. 17

a. The Secretary Has Not Shown that Respondent 

Exposed Employees to the Alleged Hazard at the 

Cited Location or Elsewhere........................................................ 17

b. The Secretary Has Not Shown that Employees 

Were in a “Zone of Danger” ........................................................ 20

2. The Secretary Has Not Established a Recognized Hazard ...................... 22

a. Respondent Did Not Have Actual Recognition of 

the Alleged Hazard ...................................................................... 23

b. The Retail Industry Did Not Recognize the Alleged 

Hazard.......................................................................................... 26

c. The Events of Blitz Day 2008 Stemmed from 

Unforeseen Circumstances........................................................... 27

3. The Alleged Hazard Was Not Likely To Cause Serious 

Injury or Death......................................................................................... 29

4. The Secretary Has Not Shown Effective or Feasible Means 

of Abatement............................................................................................ 33

a. The Secretary’s Abatement Measures are Not 

Reproducible or Demonstrably Effective .................................... 33
 Table of Contents 

(Continued) 

Page

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b. The Secretary’s Expert Cannot Provide and Has Not 

Provided Relevant or Credible Evidence of 

Feasibility..................................................................................... 37

c. Many of the Secretary’s Individual Abatement 

Measures are Facially Ridiculous or Illegal................................. 42

d. Other Abatement Measures Suggested by the 

Secretary Extend Well Beyond Crowd Management 

Techniques and Would Micromanage All Sales 

Events........................................................................................... 44

e. The Secretary is Unable to Show the Effectiveness 

or Feasibility of Abatement by Reference to Other 

Sales at Respondent’s Stores ....................................................... 45

f. Police are Uniquely Effective at Controlling 

Crowds ......................................................................................... 48

g. Abatement of the Alleged Hazard is 

Technologically Infeasible........................................................... 49

h. The Secretary’s Recommended Abatement 

Measures Expose Employees to Greater Hazards ....................... 50

C. Affirmative Defenses........................................................................................... 52

1. The Amended Complaint Lacks Necessary Authorization 

from the Area Director or a Designated Representative of 

OSHA....................................................................................................... 53

2. The Amended Complaint is Time-Barred................................................ 57

3. If the Complaint is Rejected, the Original Citation Does 

Not “Snap Back.”..................................................................................... 60

4. The Secretary Impermissibly Cites Respondent for Failing 

to Take Specific Abatement Measures .................................................... 61

5. The Application of the General Duty Clause is 

Unconstitutionally Vague Given the Arbitrary, 

Impenetrable and Nebulous Contents of the Citation.............................. 62

6. The Citation Does Not State the Nature of the Hazard with 

Particularity.............................................................................................. 64

7. The Secretary Was Required To Use Rulemaking Rather 

than Adjudication..................................................................................... 66

8. The Secretary Has Improperly Delegated Government 

Authority to an Outside Expert................................................................ 69
 Table of Contents 

(Continued) 

Page

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9. The Citation Is Directed to an Issue of Public Safety 

Outside of OSHA’s Jurisdiction .............................................................. 70

IV. CONCLUSION...................................................................................................................... 73
1 

I. 

INTRODUCTION 

Respondent’s day-after-Thanksgiving “Blitz Day” sale was a highly-anticipated annual 

event: the retail industry’s biggest shopping day of the year. And by 2008, the Valley Stream 

Store (“the Store”) had its preparations down to a science. Drawing on sixteen years of 

experience with the Company, Store Manager Steve Sooknanan began planning weeks in 

advance and based his efforts on the 12-13% growth trend for the year. He held regular 

meetings, instructed employees on safety procedures, obtained barricades to organize the line of 

customers, secured a police presence, and hired security guards, along with 100 temporary 

workers. He also consulted planning documents on the Company’s intranet, and he benefitted 

from the input of Market Asset Protection Manager Sal D’Amico, who had been with the 

Company for four years and whose Market 45 Action Plan had worked without incident at the 

Farmingdale Store on Blitz Day 2007. 

In maintaining the instant action against Respondent, the Secretary ignores these 

considerable preparations and declares that Blitz Day sales are “inherently unsafe.” See Tr. 699. 

Indeed, she goes further than that, claiming that any sales with “low prices, limited quantities, 

and popular items” are problematic, see id., and that “events” as minor as a cafeteria’s sale of 

“particularly hot” chicken nuggets are potentially dangerous. Tr. 609-10. She seems to have her 

crosshairs fixed on nothing less than the nature of free enterprise—Area Director Anthony 

Ciuffo instructs that the alleged hazard arises at sales events with anywhere between “three and 

three million” customers, and that “Friday only” or “November 28th only” sales are “possibly” 

hazardous. See Tr. 704, 707, 767. And yet, despite these bold pronouncements, she has 

forwarded an abatement regime with no demonstrated connection to employee safety. Among 

other bizarre and ridiculous measures, she instructs that clowns, flavored coffee, and racial 
2 

profiling can improve the safety of a retail sales event, and that advertising particular quantities 

of particular television sets may aggravate the hazard. She seeks to use the General Duty Clause 

as a specification standard, requiring without the benefit of a rule or industry practice that 

Respondent must place its signs at twelve to fourteen feet above the ground, for example, and 

that it must use barricades that are “at least 40 inches high.” See Tr. 380. And finally, in an 

apparent disconnect from the facts of the case, she faults Respondent for failing to take measures 

that it did, actually, take. She requires two to ten walkie-talkies when Respondent had at least 

this many. She requires twelve to fourteen crowd managers when Respondent had fifteen. She 

initially suggested that Respondent needed a plan with a clear “who, what, when, where, how, 

[and] why,” but then acknowledged that it actually had all of those things. See Tr. 682-86. 

While she maintains that Respondent “didn’t plan” and “didn’t train [its] employees,” see

Tr. 680, the record shows that Respondent had actually implemented a majority of her 

recommendations on Blitz Day 2008. 

The impetus for the Secretary’s involvement in this case, the death of Walmart temporary 

employee Jdimytai Damour, was a tragic, unpredictable event without precedent in the retail 

industry. Despite the Store’s months of planning, its coordination with local law enforcement, 

and its repeated attempts to keep the line calm and orderly, customers ignored the directions of 

Walmart associates, jumped over barricades, fought among themselves, rushed from cars to the 

front of the line, and broke through the doors, leaving Mr. Damour dead in their wake. The 

Secretary has effectively acknowledged the fluke nature of this event by conceding that 

Mr. Damour’s death is irrelevant to her citation. But at the same time, she attempts to recast it as 

a workplace “crowd hazard” within her statutory mandate. She does this by feeling her way in 

the dark. There were no previous citations on-point, and the Secretary’s Area Director Anthony 
3 

Ciuffo was not aware of “any other instance in the history of the world” when there had been “a 

fatality or serious injury to an employee” under similar circumstances. See Tr. 709-10. The 

hearing that was held between July 7 and July 14 showcased the Secretary’s considerable 

overreaching and highlighted why the Court should vacate her citation. 

First, the Secretary has failed to carry her burden of proving that Respondent violated the 

OSH Act by exposing its employees to the ill-defined hazard of “asphyxiation” or “being struck” 

from “crowd surge, crowd crush, or crowd trampling.” Complaint ¶ 5. Her exposure evidence, 

which consists almost wholly of unsubstantiated video accounts and Company injury records, 

does not show a realistic prospect of a hazard of death or serious harm to customers, much less to 

employees; given the admitted irrelevance of Mr. Damour’s death to the citation, the record only 

contains one reference to a prior employee injury under similar circumstances. Far from 

providing a basis for hazard-recognition, moreover, the size and behavior of past years’ crowds 

supported the Store’s reasonable belief that its substantial preparations would be more-thansufficient. And the Store’s reasonableness was buttressed by the parallel absence of recognition 

in the broader retail industry. The Retail Industry Leaders Association had not even discussed 

the possibility of crowd hazards in November 2008. The National Fire Protection Association’s 

Life Safety Code—the only national consensus standard dealing with crowd management—had 

expressly excused retail stores from having to comply with its crowd management requirements. 

In line with her approach to employee exposure, the Secretary relies mainly upon a first aid 

injury akin to a “paper cut” and unsubstantiated records to show that the hazard was “causing or 

likely to cause serious injury or death.” She also violates Commission precedent by relying upon 

the mere occurrence of injury as a basis for the citation. And her efforts to show that Respondent 

ignored feasible and effective means of abatement strain credulity given that Respondent 
4 

incorporated most of her recommendations and that the remainder of her scheme is premised 

upon things like clowns and racial profiling. 

Since Area Director Anthony Ciuffo is admittedly not “competent” to understand the 

citation he signed and was not consulted with or involved in the citation as amended, the 

Secretary’s case stands or falls on the shoulders of outside “expert” Paul Wertheimer. But the 

dubiously-monikered “marshal of the mosh pit” developed his asserted knowledge of crowds by 

attending rock concerts; the Secretary has not shown a single peer-reviewed article that 

Mr. Wertheimer has published, and his only demonstrated forays into retail are a handful of blog 

posts concerning the events at the center of this litigation. Mr. Wertheimer showed at the 

hearing that the citation could mean whatever he wanted it to mean, repeatedly using malleable, 

non-specific “management factors” rather than scientific principles to opine, sometimes in 

contradiction of his own previous positions, that the Store should have used different barricades, 

that it should have obtained a written agreement from the police department, and so on. In 

addition to showing his absence of “expertise,” the record supports the conclusion that his 

testimony is biased: he is still under retainer by Mr. Damour’s estate; he derives a majority of his 

income from expert testimony; he formed his opinions about this case in the days after 

Mr. Damour’s death based upon “preliminary information;” and before the Secretary retained 

him—and without any facts other than second-hand media reporting—he expressed those 

opinions in a crude cartoon, representing that Respondent had “screwed” the public. 

Second, Respondent’s affirmative defenses would defeat the Secretary’s case even if she 

had succeeded in carrying her burden of proof. The amended complaint is invalid because: (a) it 

lacks necessary legal authorization from the Secretary’s Area Director, or, for that matter, 

anyone else within the agency responsible for the administration and enforcement of the OSH 
5 

Act, and (b) it added substantial and far-reaching new factual allegations about the nature and 

geography of the hazard that could not “relate back” to the original citation after the OSH Act’s 

six-month statute of limitations had already passed. The citation also improperly targets a matter 

of public safety outside OSHA’s jurisdiction and within the state’s traditional police power. In 

light of the Store’s substantial Blitz Day preparations, moreover, the Secretary’s insistence upon 

additional precautions reads like an impermissible attempt to cite Respondent for failing to take 

specific additional measures. 

Further, the Secretary’s undue reliance upon Mr. Wertheimer amounts to an improper 

delegation of government authority to a private individual. And Mr. Wertheimer’s muddled 

attempts to elucidate the citation show that the General Duty Clause is unconstitutionally vague 

as applied, that the citation is insufficiently particular under Section 9(a) of the OSH Act, and 

that the Secretary was required to use rulemaking to announce her new position on workplace 

crowd “hazards.” Through the opaque lens of Mr. Wertheimer’s testimony, the already 

ambiguous terms of the citation—terms like “special events anticipated to attract the public”—

became even vaguer and less particular. They lack any basis in common sense, leaving 

employers to guess at the conduct required of them and without fair notice of how to avoid future 

citations.1

II. 

THE SECRETARY’S BURDEN OF PROOF 

Based on an admittedly “incompetent” Area Director and a demonstrably non-credible 

expert witness (much less a Compliance Officer who never testified), the Secretary has not 

 

1 Respondent respectfully refers the Court to its concurrently filed Proposed Findings of Fact 

for a detailed statement of facts relevant to this Post-Hearing Brief. 
6 

carried her burden of proving this seminal General Duty Clause citation for exposing 

Respondent’s employees to workplace crowd hazards. See, e.g., Nat’l Realty & Constr. Co. v. 

OSHRC, 489 F.2d 1257, 1263 (D.C. Cir. 1973).2 

To meet her burden, the Secretary must prove each element of the General Duty 

Clause—that Respondent exposed its employees to a workplace hazard, that Respondent 

recognized the hazard, that the hazard was causing or likely to cause death or serious injury, and 

that Respondent had feasible methods to materially reduce a significant risk of harm—by a 

preponderance of the evidence. See Trinity Indus. Inc., 15 BNA OSHC 1788 No. 89-1791, 1992 

WL 190280, at *2 (OSHRC); Arcadian Corp., 20 BNA OSHC 2001 No. 93-0628, 2004 WL 

2218388, at *7 (OSHRC); Pelron Corp., 12 BNA OSHC 1833 No. 82-388, 1986 WL 53616 

(OSHRC). The pertinent inquiry is whether the Secretary’s view of the facts is more likely than 

not, and the Court must consider the weight of all evidence that detracts from the Secretary’s 

case and corroborates Respondent’s. See Astra Pharm. Prods., Inc., 9 BNA OSHC 2126 No. 78-

6247, 1981 WL 18810 at *4 (OSHRC) (asking whether, “based upon all the evidence, the fact[s] 

asserted by the Secretary” are “more probabl[y] true than false”). While the Secretary’s failures 

of proof are more thoroughly examined in Part III, the basic flaws in her presentation are readily 

apparent. It is not more likely than not that clowns, flavored coffee, and racial profiling can 

improve the safety of a retail sales event. It is not more likely than not that Respondent 

 

2 Area Director Ciuffo at first claimed that he had gained competency in the field of crowd 

management, see Tr. 666, but he later admitted that this was not true (from Tr. 837): 

 Q: Is it fair to say when you told me Friday that you felt like you had developed a 

 competency in crowd management over the course of this case, is it fair to say that’s not 

 correct? 

 A: Yes. 
7 

recognized a likelihood of serious injury from past incidents that resulted in nothing more than a 

“paper cut.” At the close of the Secretary’s case-in-chief, Respondent argued that these 

elementary deficiencies provided grounds for judgment as a matter of law. Your Honor 

indicated that she would reserve her decision until she had reviewed the Secretary’s extensive 

deposition exhibits. Now, confident that nothing in the Secretary’s exhibit documents 

establishes her case by a preponderance of the evidence, Respondent renews its motion for 

judgment as a matter of law. 

In addition, the law of this case requires the Secretary to use a particular kind of evidence 

in carrying her burden of proof. Chief Judge Sommer narrowed the scope of discoverable 

evidence to focus on Respondent’s efforts: “(1) to ensure the safe and orderly entrance of people 

into the store, (2) to reinstate order should the crowd become unruly, and (3) to protect 

employees and customers from a crowd that has become unruly.” See Order of March 17, 2010, 

p. 3 (emphasis added). Judge Sommer’s emphasis on crowds that have become unruly implicates 

an important distinction between “crowd management” and “crowd control,” rendering the 

former irrelevant. As the National Fire Protection Association’s Handbook of Fire Protection 

Engineering explains, crowd management involves the “beneficial exploitation” of orderly

crowds whereas crowd control involves a “line of defense” against unruly crowds. See Govt. Ex. 

24, at 3-345.3 In disregard of Judge Sommer’s Order, the Secretary has focused almost 

exclusively upon issues of crowd management. Her expert, Mr. Wertheimer, outlined the 

elaborate measures that Respondent should have taken before the crowd became unruly. Her 

cross examination of Mr. Sooknanan focused on the Store’s efforts to prepare for Blitz Day. She 

 

3 The Life Safety Code recognizes this basic distinction, see Resp. Ex. 12, § A.12.4.1.3 (m), as 

does the Secretary’s expert Paul Wertheimer, see Govt. Ex 92, at 20. 
8 

has provided no evidentiary basis from which the Court may draw a bridge between 

Respondent’s alleged “crowd management” shortcomings and the unfortunate “crowd control” 

situation that developed. And, given the rarity of crowd safety incidents and the intuitive and 

admitted fact that crowds may either remain orderly in the absence of crowd management or 

become unruly in the presence of crowd management, see Tr. 637, 818, the absence of any 

evidentiary basis establishing a nexus between crowd management and crowd control is 

compellingly fatal to the Secretary’s case. 

III. 

ARGUMENT 

A. Respondent Took Reasonable Safety Precautions 

What makes this case most remarkable is not only the lack of precedent or the novelty of 

the Secretary’s theory of crowd “hazards,” but also that the Secretary faults Respondent for 

taking measures that, although reasonable under the circumstances, were allegedly ineffective in 

retrospect. Area Director Ciuffo stated that he cited Respondent because “[a] crowd knocked 

people down.” Tr. 692. Mr. Wertheimer thinks that Respondent needed to “effectively inform 

employees and customers” and “effectively address the anxiety of waiting customers,” among 

other things. See Govt. Ex. 92, at 11. And the citation itself indicts Respondent for failing to use 

“effective crowd control procedures and techniques.” See Complaint ¶ 5. Unlike other General 

Duty Clause citations that the Commission has upheld, in which the cited employer took no 

relevant precautions, see, e.g., Gearhart-Owen Indus., Inc., 10 BNA OSHC 2193, 1982 WL 

22715, at *7 (OSHRC) (“no precautions were taken”); Aro, Inc., 1 BNA OSHC 1453, 1973 WL 

4317, at *2 (OSHRC) (finding that the defendant “took no precautions against injury in this 

circumstance”), Respondent acted at all relevant times with an abundance of caution based upon 

years of experience in the retail industry. 
9 

1. Respondent’s Safety Precautions Were Well-Tailored to Prevent 

Known Risks 

Given the available information and the lack of actual or industry recognition, which is 

discussed in Part III.B.2, infra, Respondent’s preparations for Blitz Day 2008 were wellcalculated and should have been more-than-sufficient to provide for the safety of customers and 

employees. 

At the company level, Respondent trained new employees in safe practices, including the 

prevention of slip, trip, and fall accidents, see Govt. Ex. 148, 220-22, and this apprised 

employees of the basic elements of crowd management, see Part III.A.4, infra. Further, 

Respondent’s Emergency Procedures Manual provided “how-to” instructions on addressing a 

myriad of potential emergencies. See Resp. Ex. 30, at 11.4 And its Company intranet contained 

a wide variety of additional safety materials. See generally Resp. Ex. 136-38. Vice President of 

Asset Protection Monica Mullins testified at deposition that the home office began distributing 

Blitz Day-specific guidance materials several weeks before the event. See Govt. Ex. 148, 154-

66. 

At the store-level, Valley Stream Store Manager Steve Sooknanan drew upon the home 

office’s guidance materials and his own sixteen years of retail experience to prepare for the 

event. In accordance with Company policy, he had “ultimate” responsibility for the Store’s Blitz 

Day planning. Govt. Ex. 148, at 158. Even from Mr. Wertheimer’s perspective, this made sense 

because “people in retail” have “better” information than anyone else about “the desirability of 

 

4 The Emergency Procedures Manual was readily-accessible to managers and hourly 

employees at “multiple locations” in individual stores. See Tr. 986-87. Mr. Wertheimer 

admitted that the EPM “may have been” an adequate safety plan, and his only stated 

reservations came from an erroneous understanding that the Store’s only copy was “in the 

trunk of [Mr. D’Amico’s] car.” Tr. 538. 
10 

their products” and “the way in which people might react to them.” Tr. 476-77. Mr. Sooknanan 

began planning “several weeks” in advance, and he held weekly meetings with his management 

team. Tr. 998-1000. Among other things, he directed employees to take the following 

precautions: 

 Walk the line on Blitz Day and speak with customers; 

 Tell customers to walk and enter the store in an orderly manner; 

 Answer questions, assure customers that the Store had enough products, and provide 

information on the location of products; 

 Stand out of the crowd’s way as it entered; 

 Monitor the vestibule and the store generally to prevent and clean up slip, trip, and 

fall hazards; 

 Contact the police before Blitz Day and confirm their presence for the opening; 

 Order barricades and place them forty feet in front of the entrance to create a buffer 

zone. 

See Tr. 1111-13. Mr. Sooknanan’s efforts bore a close, logical relationship to his past 

experiences. For example, he made staffing and equipment decisions on an assumption that the 

crowd would grow at 12-13% “based on [the Store’s] sales trend for the year.” (which seemed 

sufficiently cautious not only because there was no indication that the crowd would be any 

bigger than this but also because the heavily-reported nationwide recession made it reasonable to 

expect that crowds might actually shrink). See Tr. 997-98. He directed the placement of 

barricades in front of the entrance so that employees could “completely open” the doors and 

customers would not “feel as though” they had to rush, which was perceived to have contributed 

to the problem of customers “bumping against” the door in 2007. See Tr. 1004-05, 1047. And 

he instructed employees to clear debris to prevent customers from slipping and falling, which 

was an “every day [risk] in the retail business.” See Tr. 1029, 1112. Importantly, 

Mr. Sooknanan eschewed techniques that had not worked in the past. He refrained from using 

carts to demarcate the line, for example, because this had caused a “tumultuous environment” in 

previous years. See Tr. 992-93. He refrained from using maps or informational pamphlets 
11 

because they had “posed” a “slip, trip and fall hazard” during a previous event. See Tr. 993-94. 

And he rented barricades, as opposed to using ropes and cones (as the Store had done in the 

past), as an extra measure of protection against the “minor events” of 2007 that had resulted in 

Mr. Rice’s paper cut. See Tr. 269, 999. 

In addition, the Safety Committee took strategies from The Wire and executed them 

within the Store. See Tr. 982. Market Asset Protection Manager Sal D’Amico held weekly calls 

with Asset Protection personnel to prepare them for the event. See Tr. 274-75. He developed 

market-level safety goals by operationalizing “actionable” items from company-level guidance 

documents and by drawing upon his own four years of Blitz Day experience. See Tr. 179, 230-

32. He also contracted for security guards to be present for the opening. See Tr. 69-70; Govt. 

Ex. 154. And he developed a “Market 45 Action Plan” based upon practices that had worked 

without “any issues” at Respondent’s Farmingdale store in 2007. See Govt. Ex. 2; Tr. 268. 

Asset Protection Coordinator Julius Blair and Asset Protection Manager Andrew Gilroy 

positioned barricades to demarcate the waiting area, and they hung a sign to indicate where 

customers should line up. Tr. 1053, 1062-63; See Govt. Rebuttal Ex. 1, at 14. Videos show that 

customers lined up as requested. See Govt. Ex. 34(a). 

2. Respondent Complied with a Majority of the Secretary’s 

Recommended Abatement Measures 

Indeed, despite the absence of evidence that the Secretary’s measures are reproducible or 

effective, see Part III.B.4, infra, Respondent actually complied with a majority of them on Blitz 

Day 2008. Throughout the hearing, the Secretary’s case seemed premised on an erroneous 

assumption that Respondent did very little to prepare for Blitz Day 2008. Area Director Ciuffo 

stated that “what [Respondent was] cited for was [it] didn’t plan and [it] didn’t train [its] 

employees.” See Tr. 680. Mr. Wertheimer had a similarly-flawed view of the facts, 
12 

summarizing Respondent’s precautions as “a barrier, and that’s pretty much it.” See Tr. 378. 

Yet, a closer comparison between the Secretary’s recommendations and Respondent’s careful 

preparations reveals a substantial overlap that undercuts any basis for the citation. As Exhibit 1 

demonstrates, Respondent actually complied with a majority of the recommendations from the 

citation and Complaint, as well as those from Mr. Wertheimer’s expert report and the Secretary’s 

after-the-fact November 17, 2009 Fact Sheet.5 Respondent also complied with a number of 

recommendations that the Secretary introduced at trial. For example, Mr. Ciuffo initially 

asserted that Respondent had failed to develop a plan with a “who, what, where, when, how, 

[and] why,” but then acknowledged that Respondent’s Market 45 Action Plan actually addressed 

each of those questions. See Tr. 682-86. Mr. Wertheimer and Mr. Ciuffo faulted Respondent for 

not having between two and ten walkie-talkies, see Tr. 601-02, 837, but the record demonstrated 

that Respondent had at least this many.6 Mr. Wertheimer and Mr. Ciuffo faulted Respondent for 

not having between eight and eighteen crowd managers monitoring the line, see Tr. 588-90, 826, 

but the record demonstrated that it had fifteen employees performing this task, see Tr. 103. 

 

5 See Crowd Management Safety Tips for Retailers, available at: 

http://www.osha.gov/OshDoc/data General Facts/Crowd Control.pdf. This document was 

not admitted as a separate exhibit pursuant to the Court’s Order of June 21, 2010. However, 

the Court is free to consider it as a public record that is “not subject to reasonable dispute” 

under the canons of judicial notice. See FED. R. EVID. 201. 

6 Mr. Rice, Mr. Thompson, and Mr. Calhoun each specifically testified that they had walkietalkies on Blitz Day 2008. Tr. 173, 895, 924. Also, all people greeters, managerial 

employees, hourly supervisors, cart pushers, Electronics and Lawn and Garden employees, 

back room supervisors, and Asset Protection employees had walkie-talkies. Tr. 223, 1106, 

1077, 1107. In addition, there were several base stations throughout the Store that employees 

could use to contact a manager. Tr. 1107. 
13 

3. Respondent Made Reasonable Efforts to Secure a Police Presence 

Respondent also made reasonable efforts to secure a police presence for Blitz Day 2008. 

Mr. Sooknanan testified that he asked Mr. Blair to contact the Nassau County Police Department 

and “ensure that [the Store was] going to have police presence” for the opening. Tr. 999. 

Mr. D’Amico testified that he asked his Asset Protection team to do the same. See Tr. 239. 

Mr. D’Amico explained that he had successfully obtained a police presence in prior years based 

upon a single call, see Tr. 271, and that an officer had told him that the Store “should contact the 

local precinct and give them a call” to obtain coverage in 2008. See Tr. 238. Further, Mr. Blair 

testified that he called the police on two occasions before Blitz Day and officers assured him 

they would “be there when the store is open.” See Govt. Ex. 145, at 188-89, 193-94. When the 

police arrived at the Store on Blitz Day 2008 and behaved much as they had in previous years, 

this gave Respondent a reasonable expectation that it had done everything required to secure 

their presence for the opening. See Tr. 1110. After the police abruptly left, Respondent made 

several additional calls to notify them of the dangerous situation and request that they return, see

Tr. 1017, 1094; they only returned in response to the death of Mr. Damour, Tr. 174, 1021-22. 

4. The Secretary’s Criticism of Respondent’s Good Faith Efforts is 

Unfounded 

In light of the above, the Secretary’s attempts to minimize Respondent’s efforts are 

unconvincing. She takes considerable pains to show that Mr. D’Amico was inattentive to 

Company guidance, first of all, and that his Market 45 Action Plan was inadequate. See Tr. 217-

18. Yet, Mr. D’Amico specifically “put into play” the “actionable” items from the Company’s 

guidance materials, see Tr. 230, and his efforts must be viewed in conjunction with the Store’s 

other efforts. Mr. Sooknanan had “ultimate” responsibility for Blitz Day safety planning, not 

Mr. D’Amico, see id. at 158. Along with the Store’s Safety Committee, Asset Protection 
14 

Coordinator Julius Blair, and other managerial and non-managerial employees, Mr. Sooknanan 

took all of the substantial measures outlined above and in Exhibit 1. 

The Secretary’s other attacks are equally misplaced. For example, she claims that 

Respondent needed a “chain of command,” see Tr. 369, but her employee-witnesses testified that 

they knew Mr. Sooknanan was the “overall” manager, see Tr. 12, 68, 125, 915. She claims 

Respondent needed a written agreement with the police, see Tr. 392, but this could not have 

changed the opinion of the police that the situation was “hopeless” or prevented them from 

leaving to attend to another situation they deemed more pressing, see Tr. 278-80, 1018. And the 

presence or absence of a written agreement was completely irrelevant given that the police 

actually responded to the Store’s oral requests. See Tr. 1015. She claims that Respondent used 

the wrong type of barricades, Tr. 380, but she concedes that it is “possible” the “crowd could 

[have] line[d] up without barricades at all,” see Tr. 569, and that the barricades it used were 

designed for “construction sites and roadways,” see Tr. 379.7 She claims that Respondent 

needed to conduct a “risk assessment,” but Mr. Sooknanan did just that, relying upon his sixteen 

years of experience and precise crowd-size estimates from past years. See Tr. 610, 997-1000. 

Mr. Wertheimer admits that a “risk assessment” would have predicted a crowd that “on its own” 

 

7 Presumably, a barricade meant to protect construction workers from vehicular traffic should 

be sturdy enough to protect retail employees from (lighter and slower) pedestrian traffic. The 

Secretary’s nit-picking about the height of Respondent’s barricades also stands out as an 

impermissible attempt to use the General Duty Clause as a specification standard. While 

Mr. Wertheimer contended the barricades should have been “at least 40 inches high,” he was 

unable to ground this figure in ANSI guidelines or industry customs. See Tr. 380, 553. And 

Mr. Fitch testified that “not everyone could step over [the] barricade[s].” See Tr. 87. 

Mr. Wertheimer’s qualms with the height of the sign on the exterior of the Store showed a 

similar tendency toward specification. Without citing any guidelines or customs, he claimed 

that the sign should have been between twelve and fourteen feet above the ground and visible 

from forty feet away. Tr. 562-64. 
15 

was “generally reasonable,” Tr. 503, and that crowds may pose hazards that “would not be 

obvious” to lay persons, Tr. 508. The Secretary’s general theme is that Respondent needed 

more—more walkie-talkies, more training, etc. But she has no evidence to support these claims. 

See Part III.B.4, infra. Neither she nor her expert has considered the situation ab initio in 

determining what was reasonable. See Tr. 494-95. Instead, they engaged in an irrelevant 

exercise of twenty-twenty hindsight to determine what Respondent could have done with perfect 

information and unlimited resources after they “already knew the facts.” See Tr. 499-500. And 

even then, Mr. Ciuffo and Mr. Wertheimer could not agree on the specific measures that 

Respondent should have taken, see Part III.B.4.a, infra. 

The Secretary essentially attacks Respondent for failing to provide training by the name 

of “crowd management.” Throughout the hearing, she repeatedly asked employees about their 

training “in crowd control or crowd management” while discounting their training in “slip, trip 

and fall avoidance” or other safety topics. See Tr. 1022-28. But while Respondent may not have 

used the Secretary’s terminology, it did provide much training and instruction relevant to the 

Secretary’s crowd management “techniques.” Several employees testified about conduct that 

was clearly tailored, not only to the “goal” of “protect[ing] people who gather in crowds or who 

assemble in crowds,” see Tr. 318-19, but also to the goal of protecting employees. Mr. Fitch 

testified that he patrolled the line on Blitz Day 2008 on instructions to “tak[e] carts from 

customers, kee[p] the customers in an orderly line . . . and just try[] to keep attitudes in check.” 

See Tr. 87. He also stated that employees were supposed to come back inside before the opening 

and “be cautious about not getting caught up.” See Tr. 86-87. Mr. D’Amico testified about 

“safety” training that covered “accidents and slips, trips and falls.” See Tr. 180, 189. He also 

testified that he understood to walk the line and manage the waiting crowd on Blitz Day 2008. 
16 

See Tr. 210.8 And despite the Secretary’s differing “terminology,” Mr. D’Amico testified that 

“crowd management” came under the Store’s definition of “safety” and was “something that 

[employees] were trained and had resources available for.” See Tr. 261-62. Mr. Thompson 

testified that Mr. Sooknanan told him to stay out of the entering crowd’s way, and that he 

recognized his responsibility to answer customers’ questions and “direct them where to go.” See

Tr. 883. Mr. Calhoun testified that, since at least 2005, his responsibilities included “mak[ing] 

sure the line [was] straight” and that there was “no rowdiness.” See Tr. 901. Finally, all of 

Respondent’s employees were trained to call 911 in an emergency, and they testified that they 

understood this training. See Tr. 101, 165, 262, 895, 923, 982. 

The Secretary’s inability to show that Respondent’s precautions were unreasonable is 

fatal to her case. To carry her burden of establishing a violation of the General Duty Clause, the 

Secretary “must submit evidence proving, as a threshold matter, that the methods undertaken by 

the employer to address the alleged hazard were inadequate.” See U.S. Postal Serv., No. 04-

0316, 2006 WL 6463045, at *8 (OSHRC); Alabama Power Co., 13 BNA OSHC 1240 No. 84-

357, 1987 WL 89119 (OSHRC). In Postal Service, the Secretary provided some evidence that 

her recommended ANSI-compliant vests would improve employee safety; however, she 

neglected to “sho[w] that the reflective garments or vests already provided by the Postal Service 

were inadequate such that they had to be modified or even replaced.” See U.S. Postal Serv., 1987 

 

8 Mr. D’Amico testified that he knew he was supposed to “dea[l] with the people that were 

outside, letting people know what type of merchandise we have, where we have it, handing 

out maps if applicable. Just talking to the crowd . . . seeing what they’re there to do, letting 

them know when the doors open . . . [Telling them to] walk, [and that] we have enough 

product.” See Tr. 210. 
17 

WL 89119, at *9. Here, likewise, the Secretary ignores or unduly downplays (but does not 

disprove) the effectiveness and extensiveness of Respondent’s safety precautions. 

B. The Secretary Has Not Made a Prima Facie Showing that Respondent 

Violated the General Duty Clause 

Given Respondent’s extensive precautions, it is not surprising that the Secretary has 

failed to make out a prima facie violation of the General Duty Clause. She has not shown that 

Respondent exposed its employees to a workplace hazard, that Respondent recognized the 

hazard, that the hazard was causing or likely to cause death or serious injury, or that Respondent 

had feasible and effective methods to materially reduce a significant risk of harm. 

1. Respondent Did Not Expose Employees to a Hazard 

The Secretary failed to meet her burden of demonstrating employee exposure within a 

recognizable “zone of danger.” 

a. The Secretary Has Not Shown that Respondent Exposed 

Employees to the Alleged Hazard at the Cited Location or 

Elsewhere 

Since the location of the alleged hazard is “East 77 Green Acres Mall,” see Complaint 

¶ 5, the Court’s inquiry about employee exposure is properly limited to events at the Store and, 

as discussed below in Part III.B.1.b, to a “zone of danger” within the Store. See, e.g., D.T. 

Constr. Co., 19 BNA OSHC 1305 No. 99-0147, 2000 WL 1664948 (ALJ) (explaining that the 

exposure inquiry should focus on whether employees were in the “zone of danger” where the 

alleged hazard posed an unacceptable risk of injury). But the Secretary has provided insufficient 

evidence to establish employee exposure at this critical location. In her opening statement, the 

Secretary claimed that an employee was “sliced” at the Store in 2007. See Tr. 20. In reality, 

however, Mr. Rice testified that he received a non-recordable injury “akin to a paper cut,” which 

he treated with a Band Aid before continuing to work. See Tr. 167, 996-97. Other employees 
18 

testified that crowds had pushed or run to a lesser extent on prior Blitz Days, but they did not 

testify that crowds had pushed or struck, much less asphyxiated, employees. Apart from these 

few incidents, the Secretary’s only Store-specific testimony about relevant employee experiences 

concerned Blitz Day 2008. But aside from Mr. Damour’s death, which the Secretary concedes is 

irrelevant, Tr. 21, 813, none of these experiences resulted in injury. Dennis Fitch testified that he 

emerged “unscathed” from the vestibule. See Tr. 106. Likewise, Dennis Smokes testified that 

he promptly caught his breath and continued working after customers pinned him in the 

vestibule. See Govt. Ex. 151, at 109-110. 

Given the dearth of evidence showing employee exposure at the Store, the Secretary 

predominantly relies upon incidents at other stores, as well as the distinguishable experiences of 

customers. But prior to 2008, only one recorded injury had occurred to an employee at any of 

Respondent’s thousands of stores under even arguably similar circumstances. See Govt. Ex. 127, 

at 9 (which describes an alleged Blitz Day injury, unsupported by any extrinsic testimony or 

evidence as to the alleged facts, in a vestibule to an employee at a store in Bedford, Indiana). 

The remainder of the Secretary’s bulky CMI exhibit is even more uninformative. The Secretary 

provided no eyewitness testimony or other direct evidence to explain the relevance of these 

documents, which, at best, deal with customer or crowd exposure, not employee exposure. See, 

e.g., Govt. Ex. 127, at 94 (“cl’s relatives tried to keep cl. from going into the store because she 

has lung cancer and needed oxygen when this happened”). And the Secretary’s cumulative 

video exhibits are equally defective in establishing employee exposure. Throughout the hearing, 

she repeatedly showed videos of customers rushing into stores, customers falling down, and 

customers complaining to reporters. See Govt. Ex. 25-35, 128, 143. On their face, these 

accounts do not show employees being “struck” or “asphyxiated” by crowds, and the Secretary 
19 

did not offer any testimony to the contrary. In her opening statement, finally, the Secretary 

accused Respondent of failing to “preplan how [its] customers will flow through the store” and 

neglecting to “insure . . . customer safety.” See Tr. 23-24. But since employees do not “gather 

in crowds” or “flow through stores,” the Secretary’s suggestions as to customer safety are 

unavailing in establishing employee exposure.

The Secretary’s conflation of customer and employee exposure is improper because the 

Secretary must show that Respondent “actual[ly]” exposed employees to the hazard, or that 

employees’ “access to the hazard was reasonably predictable.” See S. Masonry Constr. Co., 21 

BNA OSHC 2208 No. 06-1792, 2007 WL 1518977, at *2. Thus, in E. Smalis Painting Co., the 

Commission rejected the Secretary’s “reliance on job classification to establish overexposure [to 

lead]” and required “direct evidence” that individual employees worked in the area of exposure 

at the time of exposure. See E. Smalis Painting Co., 22 BNA OSHC 1553 No. 94-1979, 2009 

WL 1067815, at *6 (OSHRC); see also Kastalon, Inc., 12 BNA OSHC 1928 No. 79-5543, 1986 

WL 53514, at *4 (OSHRC) (rejecting the Secretary’s efforts to show employee exposure to 

carcinogens based upon extrapolations from animal testing). Here too, the Secretary makes 

inferential leaps. While employee injuries can sometimes suffice to prove employee exposure, 

see, e.g., Townsend Tree Servs. Corp., 21 BNA OSHC 1356 No. 04-1157, 2005 WL 2339316, at 

*6, the Commission has never allowed non-employee injuries to show employee exposure. 

Customers and employees have different motives (for customers, to shop and obtain sales items 

with dispatch; for employees, to service customers courteously and expeditiously), as well as 

different fields of movement (for customers, the sales floor; for employees, who do not need to 

access the store as part of any crowd, only those parts of the store that are necessary to perform 
20 

their jobs). Most importantly, Respondent affirmatively told its employees to “get out of the 

way” of oncoming crowds of customers. See Tr. 883, 1088.9 

Ultimately, the alleged employee experiences on record10 do not establish employee 

exposure because “freakish and unforeseeable” injuries do not “trigger statutory liability under 

the general duty clause,” see Tuscan/Lehigh Dairies, Inc., 22 BNA OSHC 1870 No. 08-0637, 

2009 WL 3030764, at *14 (OSHRC); “random antisocial acts which may occur anywhere” are 

not “recognized” as “characteristic of employment,” see OSHA Interpretation Letter, Dec. 10, 

1992. Given the millions of customers who enter and exit Walmart’s 4,200 stores on a daily 

basis and the millions of employees who interact with them, see Govt. Ex 91 ¶ 4; Walmart 

Corporate Fact Sheet, available at: www.walmartstores.com/download/2230.pdf, the few 

recorded instances of employee injury are distinguishable as outliers from a generally-safe status 

quo. The chance of injury that is established on the record—one or two in untold millions—is 

nothing if not “freakish.” And as Part III.B.2.c explains, the events of Blitz Day 2008 sprang 

from unpredictable extrinsic factors. 

b. The Secretary Has Not Shown that Employees Were in a 

“Zone of Danger” 

As shown above, the Secretary has failed to show employee exposure in general, in the 

Valley Stream Store, or in Respondent’s other stores. The Secretary has also not established that 

 

9 Dennis Fitch testified that non-managerial employees were not even “allowed to stay in the 

vestibule” during the Store’s opening. See Tr. 94. 

10 Indeed, the CMI materials which the Secretary fought so hard to introduce into the record 

underscore the non-fungibility of customer and employee exposure—there is only one 

incident of alleged injury to an employee in a vestibule under purportedly similar 

circumstances among the dozens of other records that the Secretary included in a highlighted 

binder after Your Honor instructed her to “go through each document” in her original exhibit 

and locate the relevant information. See Tr. 1156; Govt. Ex. 127. 
21 

employees were within an ascertainable “zone of danger.” Commission doctrine requires a welldefined hazard that affects employees in predictable places and a predictable manner. The 

Secretary must demonstrate that employees were in the “zone of danger” where the hazard 

presented an unacceptable risk of injury. See D.T. Constr. Co., 19 BNA OSHC 1305 No. 99-

0147, 2000 WL 1664948 (ALJ). A failure of proof is particularly likely where the hazard 

depends upon human behavior, which is “not always amenable to control” like machines or other 

traditional subjects of OSHA regulation. See Megawest Fin., Inc., 17 BNA OSHC 1337 No. 93-

2879, 1995 WL 383233, at *9 (OSHRC).11 Thus, in Barnhart, the Commission overturned a 

fall-hazard citation because the “zone” of exposure was a “short run of guardrail” that rational 

employees were likely to avoid. See Barnhart, Inc., 20 BNA OSHC 1710 No. 03-0352, 2004 

WL 235331, at *3 (OSHRC). In RGM Construction, the Commission rejected a similar citation 

where employees “had ample room” to avoid the alleged fall hazard. See RGM Constr. Co., 17 

BNA OSHC 1229 No. 91-2107, 1995 WL 242609, at *6 (OSHRC). 

Here, as in the above cases, the Secretary has failed to show that employees were within 

an ascertainable “zone of danger.” According to the citation, the hazard existed throughout the 

entire store. See Complaint ¶ 5 (listing the Store’s address as the location of the hazard). The 

Secretary presumably believes this construction is defensible because crowds are mobile. Yet, 

by defining the “zone of danger” so broadly, she ignores the case law. Unless the Commission 

requires a “zone of danger” that is narrower than the entire workplace, the Secretary can sidestep 

 

11 As Mr. Wertheimer quipped, “it’s not pinballs that we’re dealing with.” See Tr. 520. 
22 

her burden of proof and ignore Judge Sommer’s October 17, 2009 Order.12 Further, a “zone” 

that encompasses the entire workplace is impermissible. Cf. Union Camp Corp., 1 BNA OSHC 

3248 No. 2367, 1973 WL 4281, at *3 (OSHRC) (finding that “the citation and complaint” were 

inadequate because they “merely advise[d] the respondent that somewhere in its immense plant . 

. . there is some violation of the standard”). The danger of “crowd crush,” “crowd craze,” or 

“crowd trampling” is unlikely to exist in the same manner throughout the entire store unless we 

presume that all areas of the store and all sales items are equally popular, and that a “crowd” can 

be as few as three people (as Area Director Ciuffo incredibly testified). Tr. 767. Area Director 

Ciuffo conceded that Respondent could avoid citation by shutting its employees in a back room. 

Tr. 781. He also conceded that employees were “less likely” to be struck if they stood out of the 

crowd’s way as Respondent had instructed. Tr. 839-840. But his testimony did not suggest a 

coherently-defined “zone of danger.” See Tr. 779 (conceding that the citation “could” be read to 

cover the “entire interior of the store” but explaining that he would instead concentrate on the 

area “just beyond the vestibule” for an unspecified distance). Given the nebulous, undefined, 

and inconsistent definition of the zone of danger in the mind of the Area Director, this citation is 

fatally flawed on its face. 

2. The Secretary Has Not Established a Recognized Hazard 

The Secretary has not shown actual or industry recognition of the alleged hazard; rather, 

the events of Blitz Day 2008 stemmed from tragic, unforeseen circumstances. Moreover, 

 

12 Judge Sommer implied a limited zone of danger by narrowing the scope of discoverable 

evidence to focus on Respondent’s efforts: “(1) to ensure the safe and orderly entrance of 

people into the store, (2) to reinstate order should the crowd become unruly, and (3) to 

protect employees and customers from a crowd that has become unruly.” See Order of March 

17, 2010, p. 3. 
23 

whatever hazard may have been present was to crowds of customers, and Respondent’s 

precautions were more-than-sufficient given the knowledge and experience of Respondent and 

its industry. 

a. Respondent Did Not Have Actual Recognition of the Alleged 

Hazard 

First, the Secretary’s claim that Respondent had actual recognition of the alleged hazard 

rings hollow. At the Store level, management and employees alike saw Blitz Day as an exciting 

occasion, and they approached it with anticipation rather than trepidation. See Govt. Ex. 144, at 

149 (describing Blitz Day as “fun” and explaining that employees went to the front of the Store 

out of “excitement, the hype of Blitz”). Although minor pushing was a “normal thing” on prior 

Blitz Days, see Tr. 904, it did not raise any knowledge or anticipation of a hazard resulting in 

serious injury.13 The Secretary’s employee-witnesses all testified that they were not afraid, 

“were not concerned for [their] own safety,” and “did not expect that any employee was going to 

be injured,” even when the size and nature of the crowd were fully apparent in the minutes 

before the opening on Blitz Day 2008. See Tr. 106, 174, 896. Employee Al Calhoun, called to 

testify by the Secretary, brought his family to the event and testified that he “would not have let 

[them] wait in line if [he] thought that anyone would be injured . . . when the store was opened.” 

See Tr. 926. Indeed, neither the size nor the behavior of past crowds had given any indication 

that the 2008 crowd would turn uniquely unruly. According to Justin Rice, prior crowds had 

been “minor league” in comparison to the one that assembled on Blitz Day 2008. See Tr. 172. 

 

13 The Store’s acknowledgement that customers sometimes push does not support hazardrecognition in light of Mr. Wertheimer’s contention that subways do not need elaborate 

crowd management plans given the “repetitious” training “of every day life,” which provides 

notice that riders “are going to be struck and pushed and pressed against other people” when 

they enter a subway car.” See Tr. 555. 
24 

Store Manager Steve Sooknanan and Market Asset Protection Manager Salvatore D’Amico both 

testified that they had never seen a crowd so large or unruly in their lives. See Tr. 278, 988. And 

even in Mr. Wertheimer’s estimation, the Store should have expected a crowd that “on its own” 

was “generally reasonable” based upon past years’ data. Tr. 503. 

Importantly, no prior serious or even recordable employee injury had ever occurred at the 

Store. While the Secretary relies upon Justin Rice to show notice, he testified about a nonrecordable “paper cut.” See Tr. 167.14 In a similar vein, Alton Calhoun testified that some 

customers had fallen in previous years but had “pop[ped] right back up” without any sign of 

injury. See Tr. 924. And previous years’ property damage was also dissimilar. While the front 

doors had come off their rails from customers involuntarily “bump[ing] against” them, they had 

never come entirely out of their frame. See Tr. 152, 201, 995, 1038.15 Customers had never 

pushed the doors before they opened, let alone intentionally “kicked down” the Store’s security 

devices as they did in 2008. See Tr. 1021, 1038, 1110.16 

At the company-level, there is comparable evidence of non-recognition. The Secretary’s 

CMI exhibit shows just one employee who was injured on a prior Blitz Day in a purportedly 

similar manner. See Govt. Ex. 127, at 9 (describing an employee who was allegedly “pushed 

down and trampled” when she opened the doors on Blitz Day but who kept working despite 

 

14 Mr. Rice sustained this “paper cut,” not from “being struck,” but from glass that fell from the 

vestibule window after one rogue customer threw a boot through it. See Tr. 924, 996. 

15 Mr. Rice testified that he “still didn’t think that the doors were going to come off the hinges” 

when the Store opened on Blitz Day 2008. See Tr. 153. 

16 In light of this new evidence of intentional violent behavior, Respondent renews the proffers 

of evidence which Your Honor excluded in her June 21, 2010 Order granting the Secretary’s 

Motion in limine to Exclude Evidence Regarding Workplace Violence. 
25 

having “hurt her back.”). No testimony or other direct evidence was offered by the Secretary to 

explain the circumstances of that incident. Walmart’s Vice President of Asset Protection, 

Monica Mullins, testified that she was unaware of this or any other crowd-related injuries to 

employees on prior Blitz Days. See Govt. Ex. 91. And not for lack of attentiveness. The 

Company had identified common accident types (such as slip, trip, and fall accidents) using 

extensive data collection and analysis, and had made them the focus of ongoing safety initiatives. 

See Govt. Ex. 148, at 74-75, 148. The Company had also prepared a safety plan for all 

imaginable scenarios in its Emergency Procedures Manual.17 But while it included emergencies 

as diverse as landslides and lost children, and accounted for the possibility of workplace 

violence, it contained absolutely no reference to unruly crowds. See Resp. Ex. 30, pp. 11-12. 

In Constructural Dynamics, Your Honor instructed that “[r]ecognition that ‘anything can 

happen’ is not sufficient to establish actual recognition of a hazard under section 5(a)(1).” See

Constructural Dynamics, Inc., 22 BNA OSHC 1942 No. 07-0976, 2008 WL 7243696, at *5. 

Instead, Your Honor required the Secretary to show “at a minimum, that employees are exposed 

to a ‘significant risk of harm.’” See id.; Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 

96, 104 (2d. Cir. 1981); Kastalon, Inc., 1986 WL 53514, at *4. In that case, although the 

Secretary had cited the concrete-producer-defendant for the hazard of “pneumatic leak testing,” 

she only succeeded in demonstrating that the employer recognized a more serious hazard: 

“pneumatic integrity testing.” See Constructural Dynamics, at *3. Your Honor faulted the 

Secretary for “attempting to demonstrate that the hazard presented by a firecracker is recognized 

 

17 Mr. Wertheimer conceded that the EPM “might have been” an adequate emergency plan. 

Tr. 538. His charitable concession is especially welcome in light of his total lack of 

cognizable safety expertise reflected by any OSHA safety training or credentials such as a 

Certified Safety Professional (CSP). 
26 

by adducing evidence that the employer recognized the hazard presented by a stick of dynamite.” 

Id. at *5. Here, likewise, the Secretary’s failure to provide evidence of relevant, serious injuries 

to employees leaves her theory of actual recognition dependent upon “anything can happen” 

logic. And she repeats the same faulty reasoning-by-analogy—this time trying to make dynamite 

(“asphyxiation,” “crowd trampling,” etc.) from a firecracker (“paper cuts,” doors that came off 

their hinges, and customers who “popped back up”). Occasional paper cuts do not show 

recognition of a hazard presenting “significant risk of harm” to employees, especially when 

contextualized amidst the millions of occasions on which customers enter and exit stores without

injuring employees or each other. 

b. The Retail Industry Did Not Recognize the Alleged Hazard 

Further, as the Secretary concedes, the retail industry had not recognized the alleged 

hazard in November 2008. See Tr. 711. The only national consensus standard to have discussed 

crowd management, the National Fire Protection Association’s Life Safety Code, had expressly 

excused retail establishments from its sections necessitating the use of crowd managers. See

Tr. 722-23; Govt. Ex. 22 and 23, at § 13.7.6. As Area Director Ciuffo noted at the hearing, the

Life Safety Code only requires crowd managers for “assembly occupancies,” and the Store was 

not an “assembly occupancy.” See Tr. 722-23. The Workplace Safety Committee of the Retail 

Industry Leaders Association (RILA), designed to develop industry benchmarks and to anticipate 

legal compliance issues, had never even discussed safety hazards relating to crowds. See

Tr. 1131-32. Its membership, comprised of “the top safety executives” from member companies, 

had not identified this issue despite discussing “employee safety” on weekly calls. See Tr. 1131. 
27 

The absence of industry recognition is particularly significant here because General Duty 

Clause citations are typically dependent upon such recognition. A basic IMIS search reveals 

over 13,000 General Duty Clause citations anchored to industry consensus standards.18 This 

makes perfect sense because the absence of a specific OSHA standard means that the employer 

needs some other concrete basis for recognizing the hazard. Your Honor has expressly endorsed 

this principle. See Fabi Constr., Inc., 21 BNA OSHC 1595 No. 04-0776, 2006 WL 1302526, at 

*4 (ALJ) (rejecting an expert’s testimony about the custom for construction contractors to 

“always follow” blueprints as “an invitation to disaster” that was “clearly contrary to the intent 

of the General Duty Clause.”). Based upon the Store’s prior experience, reinforced by RILA and 

the Life Safety Code, recognition of a crowd hazard to employees could hardly be more opaque. 

c. The Events of Blitz Day 2008 Stemmed from Unforeseen 

Circumstances 

Ultimately, instead of being caused by commonplace crowd dynamics or ineffective 

Store practices, the events of Blitz Day 2008 were the result of tragic, unforeseen circumstances. 

Crowd disasters are incredibly rare. See Fruin, John J., The Causes and Prevention of Crowd 

Disasters (1993), available at: www.crowddynamics.com (finding that crowd disasters are “rare” 

and that “most” are “caused by personal carelessness”).19 Here, the crowd became unruly and 

 

18 This result was obtained by entering the query “ANSI OR ASME OR NFPA” into the 

General Duty Standard search function in OSHA’s IMIS database, which is available at: 

http://www.osha.gov/pls/imis/generalsearch.html. Since IMIS only allows users to search in 

ten-year spans, Respondent’s counsel added the information from ten-year searches 

beginning in 1972 and ending with the most recent records. 

19 Mr. Fruin’s findings are particularly relevant since Mr. Wertheimer relied upon his expertise 

both at the hearing and in his expert report. See Tr. 619; Govt. Ex. 92, at 12. Further, other 

studies support his conclusions. See, e.g., McPhail, C., “Crowd Behavior,” Blackwell 

Encyclopedia of Sociology, 881 (2007) (“violence is the exception rather than the rule at 

[Footnote continued on next page] 
28 

caused injury as a result of atypical triggering factors. Customers arrived in unprecedented 

numbers. See Tr. 278, 988. They fought each other in line, see Tr. 278, rushed from their cars to 

the entrance, see Tr. 926, and behaved in an unusually unruly manner, see Tr. 1012. This 

behavior took Mr. Sooknanan by surprise because the Store had “never had issues on the line 

before.” See id. One associate helped his family members to the front of the line, which 

“enraged” the crowd. See Govt. Ex. 145, at 15. Despite their presence at prior Blitz Days and 

confirmation that they would be present for the Store’s 2008 opening, the Nassau County Police 

Department claimed that crowd control was “not in their job description,” see Tr. 105, and then 

left the Store while declaring that the situation was “hopeless,” see Tr. 279.20 Despite entering a 

contract for services, one of two security guards whom the Company hired for the event did not 

arrive until after the Store’s opening. See Respondent’s Supplemental Response to Secretary’s 

Interrogatory 22, at 7, May 3, 2010. These factors undermine the Secretary’s citation because 

“[h]azardous conduct is not preventable if it is so idiosyncratic and implausible in motive or 

means that conscientious experts, familiar with the industry, would not take it into account in 

prescribing a safety program.” See Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 

(D.C. Cir. 1973); see also OSHA Interpretation Letter, Dec. 10, 1992 (stating that “random 

antisocial acts which may occur anywhere” are not “recognized” as “characteristic of 

 

[Footnote continued from previous page] 

most gatherings”); Martin AW, McCarty JD, McPhail, C., Why Targets Matter: Toward a 

More Inclusive Model of Collective Violence, 74 American Sociological Review 821, 831 

(finding that an increase in crowd size yields an increased probability that “some private 

property will be destroyed” but no “proportionately greater violence against either authorities 

or civilians”). Respondent asks the Court to take judicial notice of these materials, which are 

in the public arena. 

20 Of course, it was not “hopeless,” as evidenced by the police gaining immediate control of the 

crowd when they returned in response to 911 calls related to Mr. Damour. See Tr. 174, 1021-

22. 
29 

employment”); Tuscan/Lehigh Dairies, Inc., 22 BNA OSHC 1870 No. 08-0637, 2009 WL 

3030764, at *14 (OSHRC) (“freakish and unforeseeable” events do not “trigger statutory liability 

under the general duty clause”). Respondent is entitled to assume, as it did on Blitz Day 2008, 

based on interactions with millions of customers at thousands of Blitz Days, that its customers 

will not behave in an unruly, anti-social manner sufficient to endanger its employees with death 

or serious physical harm. 

3. The Alleged Hazard Was Not Likely To Cause Serious Injury or 

Death 

The General Duty Clause is only meant to address those hazards not already-incorporated 

in specific OSHA regulations that are “causing or likely to cause serious injury or death.” See

OSH Act, § 5(a)(1). But the Secretary has not shown a likelihood of serious injury or death in 

this case because the injuries on record are overwhelmingly less-than-serious and because, 

contrary to the Secretary’s policy, the hazard is linked almost exclusively to the occurrence of 

death or injury. 

First, the injuries on record are not serious. Aside from Mr. Damour’s death, which she 

concedes is irrelevant, see Tr. 21, 813, the Secretary has not presented testimony about a single 

serious injury. Justin Rice testified that he received a “paper cut” in 2007. See Tr. 167. Dennis 

Fitch testified that he emerged “unscathed” after customers allegedly stepped on him in 2008. 

See Tr. 106. And Dennis Smokes testified that he promptly caught his breath and continued 

working after customers pinned him in the vestibule in 2008. See Govt. Ex. 151, 109-110. None 

of these Store incidents were even recordable injuries much less reflections of death or serious 

physical harm to employees. In Tucsan/Lehigh Dairies, Judge Phillips rejected a similarlyunimpressive string of injuries as insufficient to support a General Duty Clause citation. The 

Compliance Officer cited the defendant-employer for allowing employees to remove the “load 
30 

bars” on delivery trucks in a manner that raised “struck by” hazards and had allegedly resulted in 

one employee’s death. See Tucsan/Lehigh Dairies, Inc., 22 BNA OSHC 1870 No. 08-0637, 

2009 WL 3030764, at *6 (ALJ). Yet, the court found that load bars were “removed tens of 

millions of times . . . without any injury” and that, based on the Secretary’s witness testimony, 

“[t]he most serious injury which could reasonably be expected to result from a[n employee] 

being struck by a load bar released under pressure is a small, minor bruise.” Id. at *14. Under 

these circumstances, the Administrative Law Judge found that the single employee death on 

record was a “freakish accident” and that the Secretary had not carried her burden of proof. Id.; 

see also Super Excavators, Inc., 15 BNA OSHC 1313 No. 89-2253, 1991 WL 218314, at *5 

(OSHRC) (finding that the physical harm caused by employees’ exposure to hazardous 

substances erroneously excluded from the cited-employer’s data sheets was “not likely” to be 

serious). 

 Nor can the Secretary rely on videotapes, CMI exhibits, and news-article exhibits as a 

speculative substitute for concrete evidence. The Secretary would have Your Honor believe that 

these pictures of surging crowds and third-hand newspaper reports establish that serious injuries 

were likely to occur to employees. But the best “evidence” the Secretary has is a twenty-onepage chart that she cobbled together on the last day of trial after she had rested her case. Exhibits 

112 through 123 are workers compensation claim forms that contain cursory, uninformative 

descriptions of the underlying incidents. See, e.g., Govt. Ex. 115, at 1 (“Opening doors for Blitz, 

pushed against”). And most of the other files in the Secretary’s chart describe facially less-thanserious alleged injuries. See, e.g., Govt. Ex. 127, at 987, 996, 1014, 1156 (indicating customers 

who continued to shop after their alleged injuries). Further, the chart is generally deficient for 

the reasons Respondent established at trial. Of the forty-nine claims listed: 
31 

 One is a duplicate. See Claim #5129407 on p. 14. 

 Four pertain to Furby-related incidents from 1998, which the Secretary conceded 

were irrelevant by withdrawing Exhibit 125. See Claim #3028671, 2274683, 

2276044, and 2276115 on pp. 18-19; Tr. 1175-76. 

 Nine are single-page placeholders for incidents at the Valley Stream Store on 

Blitz Day 2008, which the Secretary conceded were irrelevant to notice. See

Claim #5696364, 5697974, 5702673, 5702694, 5715080, 5727741, 5727758, 

5899051, and 5904601 on pp. 19-20; Tr. 1180. 

 Two pertain to fights, which Your Honor indicated were not relevant to the 

questions at issue in this case. See Claim #4836728 and 4836938 and pp 2, 8; 

Tr. 1186. 

 One is included on the basis of an unattributed statement (“pushed or fell during 

blitz sell [sic]”) that does not appear in the underlying claim file. See Claim 

#4836628 on p. 6). 

The remaining thirty-two items display the same defects that Your Honor identified at the 

hearing as a basis for denying the admission of Secretary’s Exhibits 133 through 135. Tr. 945-

48. They are comprised almost-entirely of unattributed, incomplete hearsay statements that give 

no clear indication what happened in the underlying incident. Most importantly, only the two 

claims listed under Exhibit 129 and 130 (on pp. 20-21) involve alleged injuries at the Valley 

Stream Store. This flotsam and jetsam excuse for evidence cannot form the basis for the 

conclusion that a serious injury or death was likely during Blitz Day 2008 at Valley Stream. 

 In another instructive case, the Commission found that evidence of lead-inhalation, 

though perhaps sufficient to support an “other-than-serious” violation, was not sufficient to show 

a “substantial probability that death or serious physical harm could result.” See Manganas 

Painting Co., Inc., 21 BNA OSHC 1964 No. 94-0588, 2007 WL 6113032, at *18 (OSHRC) 

(finding that the employer had improperly created airborne lead-dust but that the Secretary’s lack 

of evidence as to the quantity of lead left it unclear whether the employer caused a “substantial 

probability” of death or serious injury). Here, likewise, while the Secretary’s unexplained 

records and testimony about minimal injuries might conceivably be enough to support a generic, 

non-serious citation (although the quality of the evidence is even suspect in this regard) if there 
32 

were an applicable standard (which there is not), it cannot support her attempted groundbreaking 

use of the General Duty Clause to cite Respondent for a recognized hazard likely to cause death 

or serious physical harm. 

Further, the Secretary’s reliance on alleged employee injuries as the only real evidence of 

a hazard is contrary to her own stated policy. As the Field Operations Manual instructs, the mere 

occurrence of an injury or death may not establish a hazard or provide the basis for a citation. 

See Field Operations Manual § 4-16; see also Titanium Metals Corp. of America v. Usery, 579 

F.2d 536, 542 (9th Cir. 1978) (finding that occurrence of an accident does not, by itself, prove 

the existence of a violation).21 And this policy stands to reason, for individual instances can be 

“freakish” without, as here, any recognition of a hazard by the cited employer, his industry, or 

any consensus standard-setting body. Simply put, the OSH Act is not a strict liability statute. 

See Nat’l Realty, 489 F.2d at 1265. Yet, Mr. Ciuffo testified that he is not aware of “any other 

instance in the history of the world” when there has been “a fatality or serious injury to an 

employee” under similar circumstances. See Tr. 709-10. Instead, he relied entirely upon the 

events of Blitz Day 2008 in deciding to cite Respondent, see Tr. 692, and he had no “other basis” 

for concluding that Respondent’s safety practices were ineffective except that “the crowd 

knocked people down.” See id. Such justifications are improper and, along with the other 

failures of evidence noted above, they show that the Secretary has not carried her burden of 

proving that the alleged hazard created a likelihood of serious injury or death. 

 

21 The agency’s internal policies required it to investigate Respondent’s workplace because of 

Mr. Damour’s death. See Field Operations Manual § 11-7. However, the event that 

precipitated this citation is now, according to the Secretary herself, concededly irrelevant to 

its disposition. See Tr. 21, 813. 
33 

4. The Secretary Has Not Shown Effective or Feasible Means of 

Abatement 

Since the OSH Act was intended only to hold employers accountable for “conditions over 

which they can reasonably be expected to exercise control,” see Pelron Corp., 12 BNA OSHC 

1833 No. 82-388, 1986 WL 53616, at *3 (OSHRC), the Secretary must show that Respondent 

had available means of “eliminat[ing]” or “materially reduc[ing]” the alleged hazard. See Nat’l 

Realty, 489 F.2d at 1266-67. “The Secretary must prove that a reasonably prudent employer 

familiar with the circumstances of the industry would have protected against the hazard in the 

manner specified by the Secretary’s citation.” See L.R. Wilson & Sons, Inc. v. OSHRC, 698 F.2d 

507, 513 (D.C. Cir. 1983). Here, however, she has advanced abatement measures that are 

entirely speculative, divorced from industry practice, and may actually expose employees to 

greater hazards. Furthermore, as noted above in Part III.B.2.b, the retail industry did not 

recognize the alleged hazard, much less the purported need for the measures advocated by the 

Secretary. 

a. The Secretary’s Abatement Measures are Not Reproducible or 

Demonstrably Effective 

First, the Secretary has not provided any replicable method of developing or testing her 

abatement measures, nor any evidence of their effectiveness or applicability to the retail industry. 

The sheer size of her smorgasbord abatement regime is astounding: there are dozens of 

recommendations in the citation and in Paul Wertheimer’s expert report, not to mention others 

specifically referenced in deposition exhibits and trial testimony. See Complaint ¶ 5; Govt. Ex. 

92. Yet, the Secretary’s own Area Director is admittedly not “competent” to understand or apply 

these measures in a way that would inform Respondent what was necessary to “avoid being 

cited.” See Tr. 673. In an attempt to rescue her citation from the lack of knowledge of the 

agency that issued it, the Secretary relies exclusively on her expert, Paul Wertheimer. See
34 

Tr. 33, 298. But on direct examination she only asked him about the “reasonableness” of her 

proffered abatement measures. See, e.g., Tr. 377, 395. By declining to ask her only “feasibility” 

witness about “feasibility,” she has failed to cull any directly-relevant testimony to satisfy her 

burden of proof. Further, Mr. Wertheimer was unable to suggest anything beyond the subjective 

application of “management factors” and racial profiling as a means of deciding upon the 

measures necessary for any given crowd event. See Tr. 449, 508-12. He instructed that stores 

must hire a crowd management expert to conduct a vague, two-step process (involving an initial 

“risk assessment” and an eventual “crowd plan”) for determining the specific abatement 

measures that are necessary for any given crowd event. See Tr. 362. But he admitted that he did 

not follow this process in developing the recommendations in his expert report because he 

“already knew the facts.” See Tr. 499. 

Mr. Wertheimer gave similarly-imprecise and evasive22 answers about the application of 

specific measures in concrete scenarios. For example, when talking about the number of crowd 

managers the Store should have used, he ranged from eight to eighteen. See Tr. 588-90.23 When 

talking about the number of customers the Store should have expected, he ranged from 1,200 to 

1,400 but “c[ould not] say it was unreasonable” for the Store to “assume that only a thousand 

customers would show up.” See Tr. 513, 517. When talking about the number of customers the 

 

22 Mr. Wertheimer repeatedly went to extremes to avoid giving straightforward “yes” or “no” 

answers. See, e.g., Tr. 536 (refusing to agree that “common sense” would suggest a “store 

manager” is “in charge” of a store). 

23 This is more crowd managers than the only relevant consensus standard, the Life Safety 

Code, would require even if it were applicable (which Area Director Ciuffo concedes it was 

not because the Store is a mercantile, not assembly, occupancy, see Tr. 722-23). For crowds 

in an assembly occupancy, the Code requires one manager per 250 people. See Govt. Ex. 12, 

at § 12.7.6.1. A crowd of 2,000 people, like Respondent faced in 2008, would require eight 

crowd managers if the facility was an assembly occupancy. See Tr. 829. 
35 

Store should have let in at one time, he ranged from twenty to fifty. Tr. 616. When talking 

about the number of walkie-talkies the Store should have distributed, he admitted that “experts” 

could range from two to ten. Tr. 602. And when talking about the necessary height of the sign 

outside the Store, he ranged between twelve and fourteen feet while indicating that it should be 

visible “maybe 40 feet” away. Tr. 562-64. “Instead of applying a discernible methodology to 

the data before him,” Mr. Wertheimer “appears to rely on his instinct, an approach that cannot be 

tested, has no known rate of error, and is not subject to any standards.” See 24/7 Records, Inc. v. 

Sony Music Entertainment, Inc., 514 F.Supp.2d 571, 576 (S.D.N.Y.). This alone necessitates the 

exclusion of his testimony. See id. (excluding the testimony of a damages expert who 

“emphasized the significance of [the defendant’s] personnel, artist roster, [and other things] but . 

. . [did] not explain how he valued these factors nor how he assessed their relative 

significance.”); Bethea v. Bristol Lodge Corp. (“Bethea I”), No.CNA.01-612, 2002 WL 

31859433, at *8 (E.D. Pa. Dec. 18, 2002) (testimony of both plaintiff’s and defendant’s experts 

concerning reasonable security measures was inadmissible because neither expert “knew of or 

used any analytical methodology in reaching their conclusions”); Engleson v. Little Falls Area 

Chamber of Commerce, 210 F.R.D. 667, 671 (D. Minn. 2002) (excluding expert testimony that a 

Craft Fair should have used four-foot plastic fencing rather than twenty-eight-inch cones to 

control pedestrian traffic where this opinion was not based on “any rule, regulation, or authorized 

manual” but was “merely [the expert’s] predilection”). 

Often, Area Director Ciuffo’s guidance for the application of specific abatement 

measures differed from Mr. Wertheimer’s, which further highlights the lack of any reproducible 

standards. Against Mr. Wertheimer’s recommendation of two to ten walkie-talkies, for example, 

Mr. Ciuffo recommended five. See Tr. 602, 837. Against Mr. Wertheimer’s recommendation of 
36 

eight to eighteen crowd managers, Mr. Ciuffo recommended twelve. See Tr. 588-90, 826. 

Against Mr. Wertheimer’s recommendation that the Store should let twenty to fifty customers in 

the store at one time, Mr. Ciuffo set this range between one and five (but he later acknowledged 

that this was not reasonable without offering an alternative range). See Tr. 616, 821-22. And 

against Mr. Wertheimer’s guidance that the Store should have expected 1,200 to 1,400 

customers, Mr. Ciuffo thought it should have expected 2,000. See Tr. 517, 715. 

Importantly, Mr. Wertheimer’s own “landmark” crowd management study states that 

crowd management precautions are not necessary at all for events with fewer than 2,000 

attendees. See Tr. 530-31; Crowd Management: Report of the Task Force on Crowd Control and 

Crowd Safety, available at: http://crowdsafe.com/taskrpt/toc.html. When confronted with the 

contradiction between this recommendation and his statement at the hearing that the Store should 

only have expected 1,200 to 1,400 customers, Mr. Wertheimer claimed that his Report’s 

recommendation was out of date, but he was not able to suggest an alternative standard. See

Tr. 531. 

Ultimately, Mr. Wertheimer conceded that there was no reproducible method for 

determining the measures that are necessary for any event, nor any scientific evidence that any of 

the Secretary’s recommended measures are effective. See Tr. 348-50 (“research is not generally 

conducted, period”), 510 (“crowd management is not a science”), 625 (noting that he “[has] not 

independently tested the methods that [he] recommend[s]”). Area Director Ciuffo echoed his 

significant concessions in this regard. See Tr. 818 (“I have no empirical or scientific evidence”). 

In the absence of a reproducible formula, Mr. Wertheimer explained that he would apply 

different “management factors,” which would necessarily have different weights, for every sales 

event. Tr. 626. He would simply “mesh” these factors together and then “try to ram[p] it up a 
37 

little bit.” Tr. 523. But such guesswork cannot substitute for tested and objectively-effective 

methods. “Numerous courts have excluded expert testimony regarding a safer alternative design 

[such as the allegedly safer crowd management plan that Mr. Wertheimer recommends] where 

the expert failed to create drawings or models or administer tests.” Zaremba v. General Motors 

Corp., 360 F.3d 353, 358-59 (2d. Cir. 2004) (citing cases). In one closely-analogous case, the 

Northern District of Illinois excluded the testimony of a premises-security expert who testified 

that a number of additional security measures, such as “the failure to have physical crowd control 

measures,” could have prevented a customer from becoming frustrated and assaulting the 

plaintiff-employee. See Maguire v. Nat’l R.R. Passenger Corp., No. 99 C 3240, 2002 WL 

472275, at *2-3 (N.D. Ill. Mar. 28, 2002). Although making deductions about human behavior, 

this expert “did not refer to any studies on crowd control or psychology.” Id. at *4-5. He “relied 

only on his personal experience in reaching his conclusions” and failed to “review relevant 

literature and studies.” Id. at *5; see also Birge v. Dollar General Corp., No. 04-2531 B/P, 2006 

WL 5175758, at *11 (W.D. Tenn. Sept. 28, 2006) (excluding testimony from a premises security 

expert who testified that a retail store “had reason to know” that “criminal acts against its 

customers . . . were reasonably foreseeable” but who cited “no publications, studies, research, or 

other data that support[ed]” his conclusions); Santoro v. Donnelly, 340 F.Supp. 2d 464, 475 

(S.D.N.Y. 2004) (excluding the testimony of an expert who “did not cite to any specific research 

for [his] opinions” and instead relied wholly upon “general experience”). 

b. The Secretary’s Expert Cannot Provide and Has Not Provided 

Relevant or Credible Evidence of Feasibility 

Instead of relying upon scientific evidence, Mr. Wertheimer endorsed the Secretary’s 

abatement measures on the basis of his own generalized crowd “research.” But 

Mr. Wertheimer’s unfounded generalizations and speculations are neither relevant nor credible. 
38 

There is no evidence that he has authored any peer-reviewed publications, aside from his own 

testimony that he “probably” authored “one,” see Tr. 342-43,24 and none of his analyses have 

pertained to retail crowds, see Tr. 348-350.25 Yet, he pits his generic experience against the 

largest retail store in the world and, with respect to the cited Store, against the retail-specific 

expertise of Mr. Sooknanan and Mr. D’Amico, who had a combined twenty years of Blitz Day 

experience when they planned for Blitz Day 2008. See Tr. 179, 976. Mr. Wertheimer bases his 

claim to expertise upon time spent in crowds (all of which he must believe are fungible—from 

soccer “hooligans” and concert revelers to families waiting to enter a retail store), but he has 

only spent 1,000 hours in crowds over the past eighteen years (i.e. roughly one hour per week). 

See Tr. 337. He prides himself on having published “hundreds of pages” of “articles” on his 

website, but a cursory review reveals that it is nothing more than “a blog he’s posted.” See

Tr. 307, 453.26 Indeed, Mr. Wertheimer has not drafted a single crowd management plan since 

1984. See Tr. 348. And he developed his opinions and expertise in this matter without having 

 

24 Mr. Wertheimer’s lack of peer-reviewed publications would seem to belie his claim that he is 

“one of the better experts in the world” in crowd management. Tr. 471. In the alternative, if 

there are no peer-reviewed publications in the “field of crowd safety,” id., then 

Mr. Wertheimer’s revelation would strongly undercut the Secretary’s assertion that this is a 

“field” of expertise. 

25 The curriculum vitae included with his expert report shows that nearly all of his experience is 

specifically concerned with crowds at rock concerts. See Govt. Ex. 92. This is significant 

not only because feasibility is hinged to “experts familiar with the industry,” see Donovan v. 

Royal Logging Co., 645 F.2d 822, 830 (9th Cir. 1981), but also because Mr. Wertheimer 

admits that “input from the retailer itself”—which he did not have—is an “important data 

point” for his risk assessment. Tr. 523. 

26 Mr. Wertheimer admits that the material on his website is often based upon “preliminary 

information” and that he does not always update it when better information becomes 

available. See Tr. 437-39, 441. 
39 

familiarity with the facts of this case.27 Mr. Wertheimer’s generalized crowd “research” does 

not qualify him to opine about the particular hazards attendant to retail crowds. 

In a recent case, the Eastern District of New York excluded the testimony of a civil 

engineer who testified about alleged hazardous conditions in a retail environment. Although 

acknowledging the expert’s generalized credentials, the court found “nothing in his resume or his 

report that indicate[d] that he [had] any training and experience, let alone expertise, in safety in 

the retail environment.” See Ascher v. Target Corp., 522 F.Supp. 2d. 452, 456 (S.D.N.Y. 2007). 

Applying this holding to the instant case, Mr. Wertheimer’s testimony is inapposite because he 

has “no experience in the retail industry.” Tr. 355; see also Avcon, Inc., 98-0755, 98-1168, 2000 

WL 1466090, at *29 (Rooney, ALJ) (Sept. 19, 2000) (expert who “possesses general expertise in 

professional safety” but “has no specialized knowledge in that aspect of professional safety 

relevant to this case” is “entitled to little weight.”); Nimely v. City of New York, 414 F.3d 381, 

399 n.13 (2d. Cir. 2005) (“[B]ecause a witness qualifies as an expert with respect to certain 

matters or areas of knowledge [a point we are not prepared to concede] it by no means follows 

that he or she is qualified to express expert opinions as to other fields”). The need for 

 

27 Mr. Wertheimer’s lack of preparation was apparent during the hearing. When asked about 

the precautions that Respondent took in 2008, he stated “they had a barrier, and that’s pretty 

much it.” See Tr. 378. This, of course, is untrue. See Part III.A, supra. He claims that 

Respondent did not “make an effort to eliminate slips, trips, and falls” for Blitz Day 2008, 

see Tr. 629, but the record is positively rife with such “efforts,” see, e.g., Govt. Ex. 148, 220-

22; Tr. 189, 1027, and the Secretary appeared to concede the point by not challenging 

employees’ repeated assertions that they received slip, trip and fall training, see, e.g., Tr. 189, 

1027. Finally, even his definitions of “crowd management” and “crowd control” are 

inconsistent with materials in the Secretary’s file. Cf. Tr. 318 (describing crowd 

management as involving “systematic and comprehensive planning for and management of 

groups of people” and crowd control as involving “the planned limitation or restriction of 

crowd behavior”) with Govt. Ex. 24, at 3-345 (describing “crowd management” and “crowd 

control” as different fields meant to handle orderly and disorderly crowds, respectively). 
40 

specialized, as opposed to general, experience is important because experts must “emplo[y] in 

the courtroom the same level of intellectual rigor that characterizes the practice of an expert in 

the relevant field.” See Kumho Tire v. Carmichael, 526 U.S. 137, 152 (1999). 

As if Mr. Wertheimer’s inexperience and unpreparedness were not enough to undermine 

his credibility as an expert, the record suggests several possible improper motives for his spirited 

denunciation of Respondent. He is still under retainer by Mr. Damour’s estate. See Tr. 458-59. 

He has displayed a bias against Walmart in blog posts that pertained to events at issue in this 

litigation and represented, among other things, that Respondent had “screwed” the public. See

Tr. 434-461. He derives the vast majority of his income from expert testimony on behalf of 

plaintiffs in crowd management cases. See Tr. 466-68. As Judge Schumacher recently found 

with respect to another questionable expert, Mr. Wertheimer’s testimony is “at best disingenuous 

and at worst intellectually questionable.” See Cleveland Wrecking Co., OSHRC Docket No. 07-

0437 (ALJ June 28, 2010). 

The considerable failings of Mr. Wertheimer’s expert testimony strongly implicate the 

Court’s “gatekeeper” role under Daubert and its progeny. The Federal Rules of Evidence 

provide that expert testimony is only admissible “if (1) the testimony is based upon sufficient 

facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the 

witness has applied the principles and methods reliably to the facts of the case.” FED. R. EVID.

702. “An opinion from an expert who is not a scientist,” which Mr. Wertheimer concededly is 

not, “should receive the same degree of scrutiny for reliability as an opinion from an expert who 

purports to be a scientist.” See FED. R. EVID. 702 advisory committee’s note (2000 amendment). 

The Supreme Court’s Daubert decision requires courts to ensure that an expert’s testimony “both 

rests on a reliable foundation and is relevant to the task at hand.” See Daubert v. Merrell Dow 
41 

Pharm., Inc., 509 U.S. 579, 597 (1993). And Daubert suggests four factors that are often helpful 

in evaluating the reliability of an expert’s principles and methods: 

“(1) whether a theory or technique can be (and has been tested; (2) whether the 

theory or technique has been subjected to peer review and publication; (3) a 

technique’s known or potential rate of error, and the existence and maintenance of 

standards controlling the technique’s operation; and (4) whether a particular 

technique or theory has gained general acceptance in the relevant scientific 

community.” 

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (citing Daubert, 

509 U.S. at 593-94) (internal quotation marks, citations, and modifications omitted). Expert 

opinions need a “valid connection” to a “reliable factual basis.” See Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 149 (1999). It is the Secretary’s burden to prove that these criteria 

are met. See Daubert, 509 U.S. at 593 n.10. 

Here, Mr. Wertheimer meets none of these criteria. His opinions are not grounded on 

sufficient facts because he formed them substantially in the days following Mr. Damour’s death 

based upon no more than media reports, which even he conceded were “preliminary 

information.” See Tr. 438-41. And he continued to adhere to an incomplete version of the facts 

at the hearing. See e.g., Tr. 378 (claiming that Respondent’s precautions amounted to “a barrier, 

that’s pretty much it.”). Far from being reliable, Mr. Wertheimer admits that the principles (or 

“management factors”) necessary to develop his opinion will change, along with their relative 

weights, in every individual crowd situation. See Tr. 626. He has not applied these principles to 

yield reliable results in this case; rather, even “kn[owing] the facts,” see Tr. 500-01, he has not 

propounded anything more than imprecise, baseless ranges of acceptable behavior, see, e.g., 

Tr. 588-90 (suggesting, with no apparent touchstone, that Respondent should have hired between 

eight and eighteen crowd managers on Blitz Day 2008). 
42 

Applying Daubert, Mr. Wertheimer has not tested his theories in any context, see

Tr. 625, and he has never even seen a crowd management plan, let alone a scientific study of 

crowd management in a retail context, see Tr. 348, 475. He has no demonstrated peer reviewed 

publications and only a handful of alleged peers (whom he has not purported to work or interact 

with regularly). Tr. 471-73. Because there are no standards governing the application of crowd 

management “techniques”—Mr. Wertheimer just “meshes together” his chosen “management 

factors” and then “tr[ies] to ramp it up a little bit, see Tr. 523—it is impossible to speak of a rate 

of error. But the inscrutable ipse dixit character of his recommendations is apparent in his 

dismissive representation that lay people “would not understand” his methodology. See Tr. 602. 

Finally, Mr. Wertheimer’s opinions and techniques are not “generally accepted” in the “relevant” 

communities. At least one crowd management organization, the IAAM, has “blacklisted” him, 

see Tr. 469-70, and his opinions contradict those of the National Fire Protection Association and 

the Retail Industry Leaders’ Association, see Part III.B.2.b, supra; cf. Dayton Tire et al., 18 BNA 

OSHC 1225 No. 93-3327, 1998 WL 99288, at *18 (ALJ) (finding that the Secretary’s expert’s 

conclusions were not accepted in the relevant communities). 

For the above reasons, Mr. Wertheimer’s opinions have no “valid connection” to a 

“reliable factual basis.” See Kumho Tire, 526 U.S. at 149. Respondent renews its June 11, 2010 

Motion in Limine to Exclude the Opinion Testimony of Paul Wertheimer and requests that the 

Court exercise its “gatekeeper” role to reject Mr. Wertheimer’s unfounded opinions. 

c. Many of the Secretary’s Individual Abatement Measures are 

Facially Ridiculous or Illegal 

Not only has the Secretary failed to establish a reproducible or demonstrably-effective 

abatement regime, but a number of her abatement suggestions are facially ridiculous. For 

example: 
43 

 Mr. Wertheimer suggested that retailers should hire clowns or entertainers, but 

cautioned that a crowd management expert would have to screen their jokes for 

“possibly off color or racial” content. See Tr. 635. 

 Mr. Wertheimer suggested that retailers could distribute coffee to waiting 

customers, but cautioned that different flavors of coffee “might” have different 

impacts on the safety of an event and that three-ounce cups could present a slipand-fall hazard whereas two-and-a-half-ounce cups would “probably” not. See

Tr. 479-80. 

 Mr. Wertheimer suggested that retailers should acquire portable toilets to prevent 

waiting customers from going to the bathroom on the ground as they wait for the 

store to open, which would, in Mr. Wertheimer’s opinion, create a slip-and-fall 

hazard. Tr. 486-87. 

 Mr. Wertheimer suggested that Walmart associates needed to wear different 

uniforms when they were outside the Store or else customers might not recognize 

them as employees. See Tr. 603. 

 Area Director Ciuffo initially suggested that retailers should only admit five 

people every one-to-five minutes, but then acknowledged it would not be 

“reasonable” for the entrance of 2,000 people to take six hours. Tr. 821-22. 

 Area Director Ciuffo testified that advertising “limited quantities” of one 

“particular TV”—a Toshiba 42-inch plasma screen—may have “contributed to 

the hazard.” Tr. 703-05. 

These attempts to micromanage the retail industry are particularly objectionable given the 

Secretary’s conceded lack of reliable or reproducible means for developing such abatement 

measures. See Tr. 348-50, 510, 625 818. 

Another of the Secretary’s suggested abatement measures is patently illegal. With 

Mr. Ciuffo’s apparent approval, see Tr. 828-29, Mr. Wertheimer includes racial profiling as a 

critical component in the two-step process that retailers must follow to abate the alleged hazard, 

see Tr. 508-512. By considering the “age, race, gender,” and other “demographic” 

characteristics of the crowd, Mr. Wertheimer believes that retailers can intuit both the crowd’s 

likely behavior (i.e. whether “some people” could “pose a danger”) and the necessary abatement 

measures (i.e. whether “extra care and attention” is required). See Tr. 508-512. “From 

experience,” he thinks Canadian crowd members are particularly docile in this regard. See

Tr. 512. But this practice is clearly contrary to the public policy of the United States. Cf. Title II 
44 

of the Civil Rights Act of 1964, 42 U.S.C. § 2000(a) et seq.; New York Executive Law 15 § 296 

et seq. Indeed, in bringing suit against the State of Arizona’s SB 1070 immigration law this past 

summer, Attorney General Eric Holder indicated that if he uncovered evidence of “racial 

profiling,” he “would bring [a separate] suit on that basis.”28 

d. Other Abatement Measures Suggested by the Secretary Extend 

Well Beyond Crowd Management Techniques and Would 

Micromanage All Sales Events 

Still other testimony suggested that the hazard is inherent in the nature of retail and, as 

such, is not subject to abatement through crowd management (i.e. the subject of the instant 

citation). Area Director Ciuffo claimed that Blitz Day was “inherently unsafe” because it 

involved “low prices,” limited quantities, and . . . popular items.” See Tr. 699. He also thought 

the Store’s advertisement of “Friday only” or “November 28th only” sales was “possibly” 

hazardous. See Tr. 707-08. And he speculated that a hazard could arise from retail events that 

involved anywhere between “three and three million” people. Tr. 767. Mr. Wertheimer has 

made similar statements. In 2008, before even knowing the specific measures that Walmart had 

used, he claimed that it had “created an environment . . . known to promote competition and 

anxiety.” See Tr. 435.29 He thought Walmart had placed customers in “danger” by “inciting 

them with special retail sales discounts, early door openings, limited prize items, and hyped 

 

28 See Skiba, Katherine, “Arizona Law May Prompt Racial Profiling Suit,” L.A. Times, Jul. 12, 

2010, available at: http://articls.latimes.com/1010/jul/12/nation/la-na-holder-immigration20100712. 

29 Mr. Wertheimer’s efforts to base his testimony upon “anxiety” or other perceived 

psychological factors are irrelevant pursuant to Your Honor’s June 24, 2010 ruling on the 

Secretary’s Motion in limine to Exclude the Testimony of Dr. Arthur Barsky. Counsel for the 

Secretary acknowledged that Mr. Wertheimer was “not being offered as an expert in crowd 

psychology.” Tr. 339. 
45 

advertising.” See Tr. 439. At the hearing, he testified that hazards could arise at sales events as 

minor as the sale of chicken nuggets in a courtroom cafeteria or the sale of greeting cards in a 

stationary store. See Tr. 609-10. 

While wandering into the thicket of racial profiling and the manner in which retailers do 

business, the Secretary seems to eschew any recommendations with regard to the core of what 

happened in this case—controlling an unanticipated, unruly crowd. And this despite Chief Judge 

Sommer’s narrowing of this case to that issue. See Order of March 17, 2010, at 3 (emphasizing 

crowds that “have become unruly”). Area Director Ciuffo stated that “confronting an unruly 

crowd” was “a different issue than crowd management” and that it would not be “appropriate” to 

give employees “self defense” training like police receive. Tr. 847-48. Mr. Wertheimer 

distinguished “emergency plans” from “crowd management plans” and listed “larger crowds 

than expected” and “violence” as contingencies that stores should include in an emergency plan. 

See Tr. 375-76.30 He also stated that the “goal” of crowd management is “to protect people who 

gather in crowds or who assemble in crowds.” See Tr. 318-19. OSHA’s emphasis on crowd 

management to the exclusion of the feasible measures that Respondent took to control the crowd 

–securing a police presence and having an emergency plan, among other things—further 

demonstrates the fatal flaws in this citation. 

e. The Secretary is Unable to Show the Effectiveness or 

Feasibility of Abatement by Reference to Other Sales at 

Respondent’s Stores 

One of the Secretary’s principal arguments for the feasibility of the measures listed in her 

citation is that, subsequent to Blitz Day 2008, many of these measures were implemented at the 

 

30 Respondent had an emergency plan that expressly accounted for these contingencies. See

Tr. 264-65; Resp. Ex. 30, 31. 
46 

Store and at other Walmart establishments in 2009. See Tr. 97-100. But simply implementing a 

list of measures does not demonstrate their utility in materially reducing a significant hazard 

(here, the alleged hazard of unanticipated unruly crowds). Most importantly, the 2009 sale was 

fundamentally different from Blitz Day 2008. Because there was no “hard opening,” there was 

no occasion when crowds accumulated outside the door in the manner the Secretary alleges was 

hazardous in 2008. See Tr. 162-163, 403. Videos of the event show a continuous flow of 

customers rather than an accumulation of people followed by a mass entrance. See Govt. Ex. 95. 

Thus, the “soft opening” of 2009 reflected a completely different crowd dynamic than the “hard 

opening” of 2008. As Mr. Wertheimer conceded, customers could enter “whenever they wanted 

. . . without the large, you know, crowd buildup in front of the Store.” Tr. 403. Area Director 

Ciuffo believes that this alone “could have been responsible” for the crowd’s good behavior. See

Tr. 815-16. Further, Mr. Ciuffo admits it is “possible” the crowd was reacting to the increased 

publicity of the event, the fact that Mr. Damour had died during the previous year’s event, or any 

number of things aside from the Store’s use of crowd management tools. See Tr. 815-817. 31 It 

seems particularly “possible” that the crowd was reacting to the increased presence of police, 

which Ciuffo also concedes. See Tr. 815. Videos of the event show a massive police presence at 

the doors in 2009, see Tr. 568; Govt. Ex 95, and Mr. Wertheimer estimates that there was a “10-

20%” chance that this alone accounted for the calm demeanor of the crowd. See Tr. 569. 

 

31 Conversely, the videos of the 2009 event show customers voluntarily forming a line far 

beyond the point where Respondent made efforts to direct them. See Govt. Ex. 95; Tr. 553-

54. And Mr. Wertheimer concedes that crowds may line up and remain orderly in the 

absence of “any formal crowd management methods,” see Tr. 639, especially in situations 

where they know to do so based upon the “training of everyday life,” see Tr. 554-55. In 

other words, the crowd management techniques may have been entirely irrelevant to the 

orderly behavior of the crowd in 2009. 
47 

Further, the case law belies the Secretary’s reliance on Respondent’s 2009 experience to 

establish feasibility. First, in cases involving the General Duty Clause, the Secretary must 

“specify the particular steps [the] cited employer should have taken” and demonstrate “the likely 

utility of those measures.” See Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. 

Cir. 1973). The feasibility of an abatement measure is linked to its effectiveness such that a 

measure is only feasible if it “eliminate[s] or materially reduce[s] the hazard.” See Cardinal 

Operating Co., 11 BNA OSHC 1675 No. 80-1500, 1983 WL 23900 (OSHRC); Arcadian Corp., 

20 BNA OSHC 2001 No. 93-0628, 2004 WL 2218388, at *8 (OSHRC). An employer’s use of 

specific abatement measures before or after the citation does not prove their feasibility. See

Nat’l Realty, 489 F.2d at 1266 n.37 (“the question is . . . not whether the precaution’s use has 

become customary”). Instead, the pertinent question is whether “safety experts familiar with the 

pertinent industry” would agree on the need for their implementation. See Donovan v. Royal 

Logging Co., 645 F.2d 822, 830 (9th Cir. 1981). 

Here, since the alleged hazard sounds in Section 5(a)(1), the Secretary may not rely upon 

Respondent’s use of abatement measures to show their feasibility. First, she only inquired 

whether Respondent used “any of the measures” from Mr. Wertheimer’s report, see Tr. 396, but 

the case law requires her to show that her “particular steps,” as a whole, are feasible. See Nat’l 

Realty, 489 F.2d at 1268. Second, she has not established any nexus between her recommended 

measures and a “material reduction” of the alleged hazard. As discussed, there is no scientific 

evidence that her measures are effective, see Tr. 348-50, 510, 520, 818, and their simple use on 

one or more occasions could not provide the basis for cause-and-effect assertions. Instead of 

pointing at Respondent’s actions, the Secretary must rely upon the findings of “safety experts 

familiar with the pertinent industry.” See Donovan, 645 F.2d at 830. But Mr. Wertheimer, 
48 

although enthusiastic about the Secretary’s abatement regime, does not have any empirical basis 

for his conclusions, see Tr. 348-50, 510, 625, much less credibility as a safety expert in general 

or as a crowd management expert in particular. Most importantly, Your Honor recognized that 

he has “no experience in the retail industry.” See Tr. 355. Against his unfounded testimony, the 

Life Safety Code’s exemption of retailers from its crowd management requirements and the 

conclusions of RILA strongly suggest that the relevant community of experts does not consider 

the Secretary’s measures demonstrably feasible to materially reduce a significant hazard. 

f. Police are Uniquely Effective at Controlling Crowds 

In contrast to the lack of support for the Secretary’s recommended abatement measures, 

there is considerable evidence that simply calling the police is an (if not the only) effective 

means of controlling unruly crowds. First, the materials in the Secretary’s inspection file 

unambiguously favor police over crowd managers or crowd management tools. See, e.g.,

Federal Emergency Management Agency, “Special Events Contingency Planning Job Aides 

Manual,” at 2-10 (March 2005), available at: http://www.training.fema.gov (responsibility for 

crowd control “passes to local authorities . . . when the situation is beyond the resources and 

capability of the organizers”); Helbing, Dirk et al., Crowd Turbulence: The Physics of Crowd 

Disasters, The Fifth International Conference on Nonlinear Mechanics (ICNM-V) (June 2007) 

(“turbulent [crowd] dynamics” are “impossible to control”). Second, several witnesses 

specifically testified about the effectiveness of police. Mr. D’Amico testified that the Store did 

not have “any incidents” in prior years when the police had remained present and “used their 

[lights and] bullhorns” to maintain customers’ attention. See Tr. 271-73. Mr. Sooknanan 

testified that the police were effective on Blitz Day 2008 when they interacted with the crowd. 

See Tr. 1015 (indicating that police were “driving the line” and that customers were “heeding 

[their] warning” at around 3:00AM). Both he and Mr. Rice testified that the police were able to 
49 

clear the vestibule in “a matter of seconds” after Mr. Damour’s death. See Tr. 174, 1021-22. 

Area Director Ciuffo admitted that the police could have “possibly” calmed the crowd had they 

been present at the Store’s opening in 2008 and that the crowd’s comparative calm in 2009 was 

“possibly” due to the presence of police. See Tr. 781, 815. And Mr. Wertheimer conceded that 

there was a “10-20%” chance that the crowd’s orderly behavior in 2009 was entirely due to the 

presence of police. See Tr. 569. Based upon this testimony, it is not surprising that Respondent 

trained its employees (and the Secretary’s employee-witnesses all understood) that “if a crowd of 

customers became unruly, the store should call 911 or the police.” See Tr. 101, 165, 262, 895, 

923, 982. 

The Secretary does not contest that police are a necessary component of crowd 

management planning. Instead, she contends that the Store should have obtained a written 

agreement from the police and utilized other measures in addition to securing their presence. See

Tr. 392. But the requirement of an agreement for public services runs contrary to common 

sense. As Part III.A.3 discussed, the Store took reasonable measures to request and obtain 

assistance from the police, and they arrived according to plan. It could not have foreseen that the 

police would refuse to provide necessary services or leave early, in disregard of the crowd’s clear 

unruliness (a course of action the Store could not have prevented by invoking a written 

agreement). 

g. Abatement of the Alleged Hazard is Technologically Infeasible 

Moreover, the Secretary’s abatement measures were not sufficiently available to 

Respondent at the time of the alleged hazard, nor are they sufficiently available today. In 

Mr. Wertheimer’s view, the retention of a crowd management expert is critical to the overall 

course of abatement: he or she conducts an initial “risk assessment” and then designs and 

implements a crowd management plan using some mixture of the Secretary’s recommended 
50 

measures. Tr. 528-29. The citation echoes this view, mandating that “special events” should be 

“preplanned by a person trained in crowd management.” See Complaint ¶ 5. But together, 

Mr. Wertheimer and Mr. Ciuffo could only name five crowd management experts in the world. 

See Tr. 471-72, 768-69. Respondent has 4,200 stores, with “special sales events” occurring 

regularly and often at the same time in multiple locations. See Govt. Ex. 148, at 216-218. Even 

if one unquestionably accepts the Secretary’s purported list of crowd management providers in 

Exhibit 45, there are too few to go around. In light of Mr. Wertheimer’s emphasis on sitespecific knowledge and “circumstances,” it is unreasonable under the Secretary’s theory to think 

that one expert could provide his or her services to multiple locations at once. Tr. 451, 525. Nor 

is there any quick fix for the lack of experts. Mr. Wertheimer believes training is necessary to 

render an individual competent in the field of crowd management. See Govt. Ex. 92, at 5-6. But 

according to a 2010 National Fire Protection Association publication, crowd management 

training has been “almost non-existent.” See Tr. 573. Mr. Wertheimer conceded that this was “a 

reasonable statement.” See Tr. 580. Respondent had more stores than there were crowdmanagement experts in 2008, and it seems unlikely that the ratio has since evened out 

appreciably. 

h. The Secretary’s Recommended Abatement Measures Expose 

Employees to Greater Hazards 

Finally, there is reason to believe that the Secretary’s abatement measures would cause a 

greater hazard to employees. While “greater hazard” is usually an affirmative defense, the 

burden is reversed in General Duty Clause cases. The Secretary must rebut any evidence that her 

abatement measures would create a greater hazard in order to prove their feasibility; and without 

a convincing rebuttal, the Secretary has not established her prima facie case. See Kokosing 

Constr. Co., 17 BNA 1869 No. 92-2596, 1996 WL 749961, at *6 n.19 (OSHRC) (“Under the 
51 

general duty clause, if a proposed abatement method creates additional hazards . . . the citation 

must be vacated for failure to prove feasibility; it is not the employer's burden to establish an 

affirmative defense of greater hazard.”). For example, in Royal Logging, the Secretary cited an 

employer for rollover hazards associated with the use of heavy machinery. The Commission 

found that her recommendation of seatbelt use was not feasible because she had not rebutted 

evidence that seatbelts would leave employees exposed to the “greater” hazard of stray debris 

and branches (which are sometimes loosened during the logging process). See Royal Logging 

Co., 7 BNA OSHC 1744 No. 15179, 1979 WL 8506, at *8 (OSHRC). 

Here too, the Secretary has failed to rebut several indications of a greater hazard. First, 

as a general matter, she admits that increased proximity to an unruly crowd will increase the risk 

of harm. See Tr. 839-840 (“employees standing to the side [faced] less of a risk than members of 

the public who were in the midst of the crowd”). And yet, many of her abatement measures 

require more employees to be in closer proximity to crowds.32 The case law unambiguously 

provides that the “severity” of a hazard is dependent upon the number of employees exposed and 

the proximity of employees to the hazard. See, e.g., Hackensack Steel Corp., 20 BNA OSHC 

1387 No. 97-0755, 2003 WL 22232017, at *9 (OSHRC). Area Director Ciuffo himself 

considered the “length of exposure to employees” when determining the appropriate penalty in 

this case, Tr. 662, and he conceded that “confronting an unruly crowd” could “possibly” expose 

employees to a “greater hazard.” Tr. 847. Second, there is evidence that some of the Secretary’s 

specific abatement measures will cause individualized hazards. Mr. Sooknanan testified that 

 

32 The Secretary seeks to indict Respondent for failing to train its employees on, among other 

things, “how to reinstate order should the crowd become unruly” and “how to protect

employees and customers from a crowd that has become unruly.” See Tr. 856-57, 900. 
52 

maps had presented a slip and fall hazard in 2006. Tr. 994. Mr. Wertheimer and Mr. Ciuffo both 

testified that tickets could “possibly” lead to problems with scalping. See Tr. 612, 821.33 And 

the other recommendations are also problematic. For example, the recommendation of clowns 

could cause problems because some children are scared of them. The recommendation of coffee 

could cause a slip and fall hazard if customers dropped coffee or cups on the ground. See

Tr. 474. The recommendation of more sound-amplification devices could lead to irritation in 

those customers closest to the devices. See Tr. 560. By failing to rebut this evidence of a greater 

hazard, the Secretary has failed to carry her burden of proof. 

C. Affirmative Defenses 

Not only has the Secretary failed to establish a prima facie case, but Respondent’s 

affirmative defenses would defeat the citation even if the Secretary had carried her burden. First, 

the amendments to the citation are void because: (1) they lack necessary authorization from the 

Area Director or a designated OSHA representative, and (2) they are time-barred under the OSH 

Act’s six-month statute of limitations. The effect of nullifying the amendments on either of these 

bases is to negate the entire complaint, and with it, the underlying citation. Respondent hereby 

renews its motion to dismiss on these bases. Furthermore, regardless of whether the amended 

complaint stands or falls on procedural grounds, the citation cannot be sustained because: 

 The Secretary impermissibly cites Respondent for failing to take specific abatement 

measures; 

 The application of the General Duty Clause is unconstitutionally vague; 

 The citation does not state the nature of the hazard with particularity; 

 The Secretary was required to use rulemaking rather than adjudication; 

 

33 Indeed, police records from the Secretary’s investigation file showed a problem with scalping 

at the Best Buy adjacent to the Store on Blitz Day 2008. Tr. 610-11. 
53 

 The Secretary has improperly delegated government authority to an outside expert; 

and 

 The citation is directed to an issue of public safety outside of OSHA’s jurisdiction. 

1. The Amended Complaint Lacks Necessary Authorization from the 

Area Director or a Designated Representative of OSHA 

Perhaps the single most surprising revelation during the hearing was that neither the 

Secretary’s Area Director nor any other identified representative of OSHA authorized or had 

“something to do with” the amended complaint. See Tr. 759. In response to Area Director 

Ciuffo’s unequivocal admission that the amendments “were not made with [his] authorization” 

and that he was not “aware” of any other OSHA official who had authorized them, see Tr. 759-

60, the Secretary’s counsel at first claimed the amendments were “a decision of the Solicitor’s 

office,” but then denied having “personal” knowledge of their authorization while maintaining 

that they were “not a mystery.” See Tr. 759, 774. Area Director Ciuffo is the only agency 

official to offer any testimony in this seminal case, as well as the Secretary’s “designated 

representative.” See Tr. 300. Yet, the Secretary blithely suggests that whether Area Director 

Ciuffo or another agency official authorized the amended complaint is “neither here nor there.” 

See Tr. 761. 

Because the amendments to the citation made several major changes without the 

necessary approval of the Area Director or other authorized agency official, they are invalid. 

Among other things, the unauthorized amendments redefined the alleged hazard from one of 

“asphyxiation by crowd crush” to one of “asphyxiation, or being struck, due to crowd crush, 

crowd surge or crowd trampling;” they changed the location of the hazard from “East entrance

of 77 Green Acres Mall” to “East 77 Green Acres Mall;” they changed the definition of incidents 

that triggered a need for abatement measures from “large sales events” to “special events 

anticipated to attract the public;” and they added a requirement of “appropriate crowd 
54 

management techniques” to the original citation’s requirement of “crowd management training 

or [n]ecessary tools.” See Complaint ¶ 5. As Area Director Ciuffo acknowledged, these changes 

broadened the definition of the alleged hazard, as well as the citation’s geographic and temporal 

scope. See Tr. 771-80. 

The implementation of these changes by someone without delegated authority is an 

impermissible abnegation. Such abnegation of responsibility occurs when a delegating official 

fails to retain ultimate discretion to approve or reject his delegatee’s actions. See Richard J. 

Pierce, Administrative Law Treatise, § 2.7 (5th ed. 2009) (citing President Kennedy’s April 13, 

1961 statement to Congress). Courts also ask whether the delegation provided “intelligible 

principles” to cabin the delegatee’s exercise of discretion, see, e.g., Whitman v. American 

Trucking Assn., 531 U.S. 457, 458 (2001), and they apply heightened scrutiny when a delegation 

involves particularly “broad” responsibilities, see Pierce, Administrative Law Treatise, § 2.6. 

Without a specific delegation from the agency head (or a re-delegation from the agency head’s 

original delegate), individual officers may not act on an agency’s behalf lest concurring 

assertions of authority create contradictory results. See Continental Cas. Co. v. U.S., 113 F.2d 

284, 286 (1940) (“that the [government] agent in this case had no authority to perform the act 

relied upon . . . is evidenced by the fact that the decision of the Comptroller General, which he 

cited and which controls such disbursements, held the contrary”); Darrow v. Derwinski, 2 Vet. 

App. 303 (U.S. Ct. Vet. App. 1992) (upholding a decision by the Board of Veterans Appeals that 

it did not have authority to grant equitable relief because the Secretary of Veterans Affairs had 

not delegated that authority to the Board). 
55 

The Secretary has run afoul of the above principles by failing to show authorization for 

the amended complaint. She has delegated to Area Directors the exclusive authority to issue and 

modify citations through an agency regulation, which provides that: 

“The Area Director shall review the inspection report of the Compliance Safety 

and Health Officer. If, on the basis of the report, the Area Director believes that 

the employer has violated a requirement of Section 5 of the Act . . . he shall issue

to the employer either a citation or a notice of de minimis violations . . . .” 

See 29 C.F.R. 1903.14 (italics added); see also OSH Act § 9(a) (explaining that a citation shall 

issue if “upon inspection or investigation, the Secretary or his authorized representative believes 

that an employer has violated [the Act]) (italics added). The OSHA Field Operations Manual 

reflects the Area Director’s broad authority by indicating that amendments are only appropriate 

“when information is presented to the Area Director or designee [that] indicates a need for such 

action.” See Field Operations Manual § 5-13 (“FOM”). And the Commission’s case law 

supports the FOM’s articulation of appropriate delegation. See, e.g., Hoffman Constr. Co., 3 

BNA OSHC 1425 No. 5057, 1975 WL 4933, at *4 (stating that Area Directors are the agency’s 

“delegated issuing authority”). Thus, in order for someone other than an Area Director (such as, 

for example, the Solicitor’s Office) to issue, amend, or authorize the amendment of a citation, the 

Secretary or the Area Director would have to re-delegate that authority and provide “intelligible 

principles” for its exercise. But there is no evidence of such a delegation here. The Secretary 

has not amended Section 1903.14 in any way, and Mr. Ciuffo testified that he did not authorize 

anyone else to act on his behalf. See Tr. 759-60. To make matters worse, the Secretary has not 

even identified the responsible person or entity, so there is no assurance against the unlawful 
56 

involvement of private parties34 and the Court should presume that there was no responsible 

entity. 

While an attorney with Solicitor’s Office claimed the amendments were the Solicitor’s 

“decision” at one point in the hearing, see Tr. 759,35 the Solicitor lacks the authority to give 

valid approval. The Secretary’s regulations establish that the Solicitor’s Office is responsible for 

“providing legal advice” and determining whether legal proceedings are “appropriate.” See

Secretary’s Order 4-2010, Delegation of Authority and Assignment of Responsibility to the 

Assistant Secretary for Occupational Safety and Health, 75 FR 55355 (Sept. 10, 2010).36 

Similarly, Commission rules allow “the Secretary” to amend her citation or proposed penalty at 

the Complaint stage of a legal proceeding. See OSHRC Rule 34(a). But, especially given 

Section 1903.14, these provisions do not allow the Solicitor to make substantive changes to a 

citation on her own without the authority—or even the input—of the expert agency that issued 

the citation in the first place.37 Cf. Continental Cas. Co., 113 F.2d at 286. It would also defeat 

 

34 Any delegation of government authority to a private entity is presumptively unlawful. See 

Carter v. Carter Coal, 298 U.S. 238, 311 (1936). 

35 The identity of who in the Solicitor’s Office may have made the decision to substantially 

broaden the gravamen of the alleged violation does, in fact, remain “a mystery.” See Tr. 774. 

36 To the extent that this delegation to the Solicitor’s Office is made in the context of a 

delegation to OSHA, it severely circumscribes her role in that context and clearly prohibits 

her from making changes to a citation that go well beyond “providing legal advice.” 

37 The problems attendant to the lack of authorization are even more significant considering 

that the amendments substantially expanded the nature of the hazard, as well as its 

geographic and temporal scope, as discussed above. Perhaps some minor unauthorized 

action by the Solicitor or an unidentified individual within OSHA would not raise alarms, cf. 

Perlmutter v. Commissioner, 373 F.2d 45 (10th Cir. 1967) (allowing a district office of the 

Internal Revenue Service to issue tax deficiency notices without an express delegation from 

[Footnote continued on next page] 
57 

the purpose of having an expert agency to enforce the OSH Act. Since the Secretary has not 

shown that anyone within the agency authorized the amended complaint, it lacks color of law 

and is not entitled to receive legal effect. 

2. The Amended Complaint is Time-Barred 

The Secretary’s amendments are also void under the OSH Act’s statute of limitations. 

OSHA concluded its investigation on March 13, 2009, and issued its original citation on May 26, 

2009. It then waited three months to issue the amended complaint on August 14, 2009. But 

since the OSH Act’s statute of limitations provides that no citation may be issued after the 

expiration of six months following the occurrence of the alleged violation, see OSH Act § 9(c), 

these changes were out-of-time.38 

Nor does it avail the Secretary to argue that her substantial amendments “relate back” to 

the original complaint. The “relation back” rule is a limited exception to the statute of 

limitations that enables parties to achieve, through amendment, what they could not achieve in a 

new citation. Its applicability determines, in the first instance, whether the action is a permitted 

amendment or a prohibited issuance. An otherwise out-of-time amendment may “relate back” if 

it concerns “the conduct, transaction, or occurrence” alleged in the original Citation, see id., but 

the cases that allow “relation back” are typically concerned with minor or technical changes, see 

Duane Smelser Roofing Co., 4 BNA OSHC 1948 No. 4773, 1976 WL 22798, at *3 (OSHRC) 

(allowing an amendment to correct a “technical deficienc[y]”), CMH Co. Inc., 9 BNA OSHC 

1048 No. 78-5954, 1980 WL 10699, at *5 (OSHRC) (allowing an amendment to substitute a 

 

[Footnote continued from previous page] 

the Commissioner of Internal Revenue where such delegation could be implied), but 

unauthorized changes of this magnitude certainly should. 

38 Blitz Day fell on November 28, 2008, so the statute of limitations expired on May 28, 2009. 
58 

“closely related” company as the respondent). An amendment will not “relate back” if it places 

new facts at issue or unduly enlarges the scope of the original complaint. See Worldwide Mfg., 

Inc., 19 BNA OSHC 1023 No. 97-1381, 2000 WL 1086717, at *3 n.2 (OSHRC) (upholding 

ALJ’s decision not to amend complaint from a serious violation to a willful violation because it 

would have “placed new facts in issue”); Roanoke Iron & Bridge Works, 5 BNA OSHC 1391 

No. 10411, 1977 WL 7489, at *3 (OSHRC) (upholding ALJ’s decision not a amend complaint 

where the amendments would “add new factual allegations”); B.C. Crocker, 1975 WL 22024 

(ALJ) (denying on statute-of-limitations grounds an amendment that would have added a new 

hazard from the same alleged cause (lack of machine guarding). 

Under any reading of the applicable case law, the Secretary’s amendments do not “relate 

back” to the original citation because they add new facts and enlarge the citation. 

First, they add new hazards. While the original citation alleged a hazard of “asphyxiation 

by crowd crush,” the amended complaint adds the garden-variety hazard of “being struck.” 

While the original citation alleged that employees faced injury from “crowd crush,” the amended 

complaint adds the possibility of injury from “crowd surge, or crowd trampling.” See Complaint 

¶ 5. As Respondent has previously argued, “being struck” is an entirely different hazard than 

“asphyxiation.” OSHA’s IMIS database has a unique category for “struck by” hazards, and there 

are multiple cases to support this separate categorization. See Ed Cheff Logging, 9 BNA OSHC 

1883 No. 77-2778, 1981 WL 18906, at *7 (OSHRC) (distinguishing “rollover” hazards from 

“struck by” hazards); Darby Creek Excavating, Inc., 21 BNA OSHC 1137 No. 03-1541, 2004 

WL 2857354, at *3 (OSHRC ALJ) (distinguishing “pinch point” hazards from “struck-by” 

hazards). The Secretary explained that she sought to amend the citation “to reflect that 

employees were exposed to the hazards of asphyxiation and being struck.” See Complainant’s 
59 

Opposition, at 3. Also, Area Director Ciuffo testified that the alleged asphyxiation hazard is 

“more serious” than the alleged struck by hazard and that “crowd crush, crowd surge, or crowd 

trampling” is “more encompassing” than “crowd crush.” See Tr. 766-67. And Mr. Wertheimer 

provided detailed reasons why “crowd crush,” “crowd surge,” and “crowd trampling” are 

separate phenomena. See Tr. 318. 

Using the Secretary’s videotape exhibits as an example, it is easy to see how the addition 

of new hazards “places new facts at issue.” Instead of determining whether the employees in 

these exhibits were at risk of being “asphyxiated,” the Court need only conclude, more broadly, 

that the crowd may have “struck” employees. Instead of applying OSHA’s well-established 

definition of “crushing” (which has its own IMIS search category), the Court need only 

determine the likelihood of “crush,” “surge,” or “trampling” on Mr. Wertheimer’s terms. The 

Secretary, quite clearly, alleges a different recognized hazard—factually and legally—in her 

complaint than she did in her citation. 

Second, the amendments broaden the geographic scope of the violation. While the 

original citation placed the hazard at the “East entrance of 77 Green Acres Mall,” the amended 

complaint encompasses the entire premises at “East 77 Green Acres Mall.” See Complaint ¶ 5. 

At the hearing, Mr. Ciuffo admitted that the citation could be read to allege the presence of a 

hazard throughout “the entire interior of the store.” See Tr. 779. But the Commission has 

rejected similar attempts to expand the cited area. See Willamette Iron & Steel Co., 1978 CCH 

OSHD ¶ 22,587 No. 76-1201, 1978 WL 22368, at *6 (ALJ) (denying amendment where it 

“would enlarge the space where the violation allegedly existed to include new, additional 

areas”). 
60 

Third, the amendments expand the temporal scope of the hazard. While the original 

citation required abatement measures for “large sales events,” the amended complaint requires 

abatement measures for “special events anticipated to attract the public.” Complaint ¶ 5. As 

Respondent has previously argued, “special events” are a subset of “large sales events;” Walmart 

sells computer games, books, and a number of other items that have “special” release dates but 

whose release does not constitute a “large sales event.” See Respondent’s Motion to Strike, at 7. 

Indeed, depending on how arbitrary the Secretary intends to be with respect to this nebulous 

allegation, “special events anticipated to attract the public” could include daily sales at every 

store. At the hearing, Mr. Ciuffo sanctioned this interpretation by explaining that abatement 

measures might be necessary for any crowd between “three and three million” people. See

Tr. 768. Along similar lines, Mr. Wertheimer testified that things like the sale of chicken 

nuggets by a courtroom cafeteria could constitute “special sales.” See Tr. 609-10. Such a 

broadening of the citation’s temporal scope clearly exceeds the parameters of the original 

citation. See Willamette Iron & Steel, at *6. 

3. If the Complaint is Rejected, the Original Citation Does Not “Snap 

Back.” 

The invalidity of the Secretary’s amendments requires the dismissal of her case. An 

amended complaint supersedes the original citation, so the complaint may not “snap back” to 

avoid the negative implications of amended language. See Int’l Controls v. Vesco, 556 F.2d 665, 

at 668 (2d Cir. 1977) (“it is well established that an amended complaint ordinarily supersedes the 

original and renders it of no legal effect”). Yet, even if the Secretary’s complaint could snap 

back, she would have no basis for maintaining an argument. Since the Secretary now concedes 

that the cause of Mr. Damour’s death is irrelevant, she has taken the originally-cited hazard of 

“asphyxiation” off the table. See Tr. 21, 813. There is no other evidence that employees faced a 
61 

danger of asphyxiation because the Secretary’s case focuses entirely on the improperly-alleged 

hazard of “being struck.” 

4. The Secretary Impermissibly Cites Respondent for Failing to Take 

Specific Abatement Measures 

Further, in light of Respondent’s reasonable efforts, portions of the Secretary’s citation 

read like an impermissible checklist of “should haves.” Commission precedent instructs that the 

Secretary may not allege a hazard in terms of the necessary abatement measures; that the 

presence or absence of hazardous conditions is determinative, not the presence or absence of 

specific abatement measures. See, e.g., Pepperidge Farm, Inc., 17 BNA OSHC 1993 No. 89-

265, 1997 WL 212599, at *55 (OSHRC) (Gutman, Commissioner, separate opinion) (“Neither 

the contested citation nor section 5(a)(1) itself required Pepperidge to implement the specific 

abatement measures that were recommended by the Secretary’s witnesses”); Brown & Root, Inc., 

8 BNA OSHC 2140 No. 76-1296, 1980 WL 10668 (OSHRC), at *5 (“the employer may use any 

method that renders its worksite free of the hazard and is not limited to those methods suggested 

by the Secretary”); Arcadian Corp., 20 BNA OSHC 2001, 2004 WL 2218388, at *8 (OSHRC) 

(“stating a hazard in terms of the absence of abatement is, of course, error”). Yet, the Secretary 

has not provided a precise description of the alleged hazardous condition: she merely explains 

that the hazard of “crowd crush, crowd surge or crowd trampling” will arise to different degrees 

at different “special sales events” depending upon the site- and event-specific “risk assessments” 

of a crowd management expert, the race of the crowd, and other “demographic” factors. See

Tr. 508-12, 610. She further makes the citation hinge upon the type of abatement measures the 

Store used. In the context of Blitz Day 2008, she alleges that hazardous conditions arose from 

the absence of “appropriate crowd management techniques.” Complaint ¶ 5. In her opening 

statement, the Secretary explained that the alleged “hazards occurred as a result of Walmart’s 
62 

failure to take sufficient measures to protect employees from crowd crush, crowd surge, and 

crowd trampling.” See Tr. 18 (for example, its use of “just a handwritten sign” instead of a sign 

with “professional” font and layout. See Tr. 27, 833). Area Director Ciuffo put the matter even 

more bluntly at the hearing, explaining that “what [Respondent was] cited for was [it] didn’t plan 

and [it] didn’t train [its] employees.” See Tr. 680. 

5. The Application of the General Duty Clause is Unconstitutionally 

Vague Given the Arbitrary, Impenetrable and Nebulous Contents of 

the Citation 

The terms of the citation also raise constitutional issues. The Supreme Court has 

instructed that “a statute which either forbids or requires the doing of an act in terms so vague 

that men of common intelligence must necessarily guess at its meaning and differ as to its 

application violates the first essential of due process of law.” See Connally v. Gen’l Constr. Co., 

269 U.S. 385, 391 (1926). In the context of workplace health and safety, the Fifth Circuit has 

said that “if a violation of a regulation subjects private parties to criminal or civil sanctions, [the] 

regulation cannot be construed to mean what [the] agency intended but did not adequately 

express.” Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). The 

Commission has said that a statute or regulation must provide “reasonably prudent employer[s]” 

in the relevant industry with “notice and warning” of the conditions it prohibits. See Asamera 

Oil, Inc., 9 BNA OSHC 1426, 1980 WL 81803, at *14 (ALJ). Standards dependent upon “the 

whim of an Area Director” must fail. See Santa Fe Trail & Transport Co., No. 331, 1973 WL 

165888, at *2 (OSHRC). Thus, in Castle & Cook Foods, the Commission rejected a standard 

that required “feasible engineering or administrative controls” to protect employees from 

dangerous noise levels. See Castle & Cook Foods, 1975-1976 CCH OSHD ¶ 20,182 No. 10925, 

1975 WL 21994, at *2 (OSHRC). Without some further “reasonable test,” it said, this 

instruction left employers to “guess at their peril” what controls the Secretary would 
63 

“subjectively” consider feasible. See id. at *9-10; see also Asamera Oil, 1980 WL 81803, at 

*14-15 (rejecting a standard that required employers to identify and prevent fire hazards 

“normally prevented by positive mechanical ventilation” because there was no “rationale” for the 

Secretary’s expert’s “rule[s] of thumb”). 

In the context of the instant General Duty Clause citation, the void for vagueness case 

law applies with even greater force. Respondent lacks a “reasonable test” and must guess at 

required conduct. The General Duty Clause, which says only that employers must “furnish a 

place of employment that is free from hazards causing or likely to cause death or serious injury,” 

is vague without further guidance concerning the specific hazard and conduct at issue. See, e.g., 

Davey Tree Expert Co., 11 BNA OSHC 1898 No. 77-2350, 1984 WL 34818, at *1 (OSHRC) 

(finding that the Secretary’s “broad, generic definition” of a hazard arising under the General 

Duty Clause did not “apprise [the employer] of its obligations [or] identify conditions or 

practices over which [it could] reasonably be expected to exercise control”). The Secretary 

attempts to operationalize the Clause in this case by requiring “appropriate crowd management 

techniques” at “special sales events” and instructing employers to hire an expert for case-specific 

definitions. Complaint ¶ 5. But if the whim of an Area Director is not appropriate for the 

Secretary to rely upon, then neither is the whim of an outside “expert.” If “rules of thumb” are 

insufficient, then so are Mr. Wertheimer’s “management factors.” And if “feasibility” is not a 

“reasonable test,” then neither is “appropriateness.” Area Director Ciuffo acknowledged the 

Complaint’s open-endedness by conceding that abatement measures might be necessary for any 

crowd between “three and three million” people. See Tr. 768. Mr. Wertheimer did the same by 

testifying that everything from a cafeteria’s sale of chicken nuggets to a retail store’s Blitz Day 

sale could constitute “special sales.” See Tr. 609-10. There is no means, derived from the text of 
64 

Section 5(a)(1), by which Respondent could guess, for example, that it needed to profile crowds, 

or that clowns could improve the safety of its events, or that the appropriate number of crowd 

managers for a sales event of 2,000 people was between eight and eighteen people. While the 

Secretary may have “intended” these applications, they are not “adequately expressed” in a 

clause generally targeting “hazards causing or likely to cause death or serious injury.” See

Diamond Roofing Co., 528 F.2d at 649. To permit such a strained interpretation of the General 

Duty Clause “is to delay the day when the occupational safety and health regulations will be 

written in clear and concise language so that employers will be better able to understand and 

observe them.” See Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). 

6. The Citation Does Not State the Nature of the Hazard with 

Particularity 

The Secretary must also describe alleged violations of the OSH Act with “particularity.” 

See OSH Act § 9(a). While her citations need not contain “minute detail,” they must “fairly 

characterize the violative condition” in a way that is adequate “to inform the employer of what 

must be changed.” See Hercules, Inc., 20 BNA OSHC 2097 No. 95-1483, 2005 WL 5518545, at 

*2 (OSHRC). Thus, in Rasmussen, the Commission rejected a citation that blankly called for the 

employer to “initiate a safety program” because it did not specify how the employer’s conduct 

implicated specific hazards and its list of requirements was “nothing more than OSHA’s own 

idealized minimum safety program.” See Rasmussen & Sons Constr., 17 BNA OSHC 1565 No. 

94-1954, 1995 WL 17049980, at *5 (OSHRC). In Whirlpool, likewise, the Secretary’s citation 

was initially non-particular because it did not clarify whether an alleged problem with the 

employer’s netting system was the netting itself or the bolts that held the netting in place. See 

Whirlpool Corp., 7 BNA OSHC 1356 No. 9224, 1979 WL 8443, at *5 (OSHRC). The Secretary 

must also describe the location of the violation with particularity. In BW Harrison, for example, 
65 

the Fifth Circuit rejected a citation that called for a “hearing conservation program” without 

identifying the particular work stations where noise violations occurred. See Marshall v. B.W. 

Harrison Lumber Co., 569 F.2d 1303, 1309 (5th Cir. 1978); see also Union Camp Corp., 1 BNA 

OSHC 3248 No. 2367, 1973 WL 4281 (OSHRC) (“the citation and complaint merely advise the 

respondent that somewhere in its immense plant . . . there is some violation of the standard”). 

And in Henry J. Kaiser, the Commission explained that a citation implicating “split timbers” in 

a scaffolding structure was not sufficiently particular until the Secretary amended the complaint 

to reference specific beams. See Henry J. Kaiser Co., 11 BNA OSHC 1597 No. 82-476, 1983 

WL 181692, at *1-2 (OSHRC). 

Here, as in the above cases, the Secretary has not described the required conduct or the 

location of the hazard with particularity. First, the required conduct is “not limited to” the 

“procedures and techniques” listed in the complaint. Complaint ¶ 5. Respondent is supposed to 

hire someone with “training in crowd management” to conduct a “risk assessment” for any 

“special event.” See Tr. 528-29. But if the Secretary must specify between one of two equallyplausible abatement measures, as in Whirlpool, then she must specify the concrete “procedures 

and techniques” she has in mind here. If the call to “initiate a safety program” in Rasmussen was 

not particular, then neither is the Secretary's call to “hire an expert” (in so many words).39

Second, the Secretary generically implicates “East 77 Green Acres Mall” as the location of the 

hazard. Complaint ¶ 5. Mr. Ciuffo unsuccessfully attempted to clarify the citation’s generic 

 

39 Even if the Secretary’s terms were not facially problematic, moreover, the lack of readilyavailable experts and relevant consensus standards would leave Respondent without hope of 

obtaining consistent guidance across events or locations. See Tr. 580 (Wertheimer, 

conceding that crowd management training was “almost non-existent” before 2010), 471-73 

(Wertheimer, conceding that he is only aware of five crowd management experts in the 

world). 
66 

location, conceding that it could be read to encompass the whole store while indicating that he

would read it to cover “the sidewalk, the vestibule, and some [unspecified] front portion of the 

store.” See Tr. 779. But just as the Secretary’s whole-plant locations were unacceptable in BW 

Harrison and Henry J. Kaiser, she cannot target the whole store (or some generic “front 

portion”) in this case. Just like the employers in those cases could not be required to ferret out 

particular planks or noise hazards, Respondent should not have to start from scratch in 

determining how to pair specific abatement measures with specific work locations in its stores. 

7. The Secretary Was Required To Use Rulemaking Rather than 

Adjudication 

The lack of relevant industry standards pertaining to crowd control dictates that the 

Secretary should have proceeded by rulemaking rather than adjudication to target the alleged 

hazards. There was no “anchor” for the instant adjudication because the retail industry had not 

even discussed crowd hazards and the National Fire Protection Association had expressly 

excused retailers from having to comply with the Life Safety Code’s crowd management 

provisions. The Secretary’s own expert, Mr. Wertheimer, opined that the targeted conduct 

should be “made safe by creating a standard that everybody can adhere to . . . a formal standard 

that is adopted or applied that requires everyone to stay consistent.” See Tr. 637 (emphasis 

added). 

The Supreme Court has instructed that agencies should perform “the function of filling in 

[statutory] interstices . . . as much as possible, through the quasi-legislative promulgation of 

rules.” See SEC v. Chenery, 332 U.S. 194, 202 (1947). Problems of notice and fairness arise 

when agencies use adjudication to develop policy on novel issues or change their existing policy. 

See id. at 203. “Where, as here, a party first receives actual notice of a proscribed activity 

through a citation, it implicates the Due Process Clause of the Fifth Amendment.” See Fabi 
67 

Constr. Co., Inc. v. Secretary of Labor, 508 F.3d 1077, 1088 (D.C. Cir. 2007); see also Martin v. 

OSHRC, 499 U.S. 144, 158 (1991) (noting that “the decision to use a citation as the initial means 

for announcing a particular interpretation may bear on the adequacy of notice to regulated 

parties”). Thus, agencies must use rulemaking if the problem of retroactively deeming conduct 

unfair, which is inherent in the use of adjudication, outweighs “the mischief of producing a result 

which is contrary to statutory design.” See id. The problem of retroactivity is particularly salient 

in cases of second impression, see NLRB v. Majestic Weaving Co., 355 F.2d 854, 860-61 (2d. 

Cir. 1966), and in cases involving fines or penalties, see NLRB v. Bell Aerospace Co., 416 U.S. 

267, 295 (1974). While the Supreme Court has not had occasion to specify any concrete 

situations when rulemaking is necessary, lower courts have provided clearer guidance. In Ford 

Motor Company, for example, the Ninth Circuit announced the principle that agencies may 

proceed by adjudication “to enforce discrete violations of existing laws where the effective scope 

of the rule’s impact will be relatively small,” but must proceed by rulemaking if they seek “to 

change the law and establish rules of widespread application.” See Ford Motor Co. v. FTC, 673 

F.2d 1008, 1009 (9th Cir. 1981). Other courts have held similarly. See, e.g., CBS Inc., v. 

Comptroller of the Treasury, 575 A.2d 324 (Md. 1990) (finding that a state comptroller should 

have used rulemaking to introduce a means of calculating tax income that differed from the 

means used in previous audits); Metromedia, Inc. v. Director, Div. of Taxation, 478 A.2d 742, 

750-51 (N.J. 1984) (same). 

The Secretary’s use of adjudication in this case raises all of the above concerns. Nothing 

inherent in the OSH Act’s “statutory design” compels the Secretary’s immediate intervention. 

This is an admittedly-novel theory of liability, and nothing objectively new to the workplace 

triggered the Secretary’s sudden interest. The problems of retroactivity are heightened by this 
68 

novelty, as well as by the Secretary’s attempt to impose fines and by courts’ past rulings on 

similar issues. At the time of the alleged violation, the Commission had not considered crowdbased hazards, but it had instructed that “freakish and unforeseeable” injuries do not “trigger 

statutory liability under the general duty clause,” see Tuscan/Lehigh Dairies, Inc., 22 BNA 

OSHC 1870 No. 08-0637, 2009 WL 3030764, at *14 (ALJ); see also Nat’l Realty, 489 F.2d at 

1266 (conduct that is “idiosyncratic and implausible in motive or means” is not subject to 

regulation under the General Duty Clause). At least one ALJ had instructed that human behavior 

was a “wild card” that was not directly “amenable to control” under the OSH Act. See Megawest

Fin., Inc., 17 BNA OSHC 1337 No. 93-2874, 1995 WL 383233, at *8-9. And courts had rejected 

the Secretary’s attempts to regulate human-behavior based hazards in other similar contexts, 

including workplace violence and ergonomics. See id., at *9 (holding that employer did not 

recognize a “hazard” of workplace violence); Ramsey Winch, Inc. v. Henry, 555 F.3d 1199, 

1205-06 (10th Cir. 2009) (applying Megawest and finding that, despite guidance materials on 

OSHA’s website, workplace violence was not a “recognized hazard” under the General Duty 

Clause); Pepperidge Farm, Inc., 1997 WL 212599, at *51 (finding that the Secretary had not 

identified a feasible means of abating repetitive motion injuries); Nat’l Realty, 489 F.2d at 1266 

(holding that the Secretary had not identified a feasible means of preventing employee 

horseplay). These were the most relevant guidance materials available to Respondent, and the 

instant citation effectively second-guessed them. The Secretary is not seeking to “enforce 

discrete violations of existing laws,” then, but to “establish [new] rules of widespread 

application.” This is her first case on workplace crowd hazards, and her new rules are so 

“widespread” that they could affect everything from a day-after-Thanksgiving sale to the sale of 

“particularly hot” chicken nuggets or “every day” low-priced goods. See Tr. 609-10, 771-72. 
69 

8. The Secretary Has Improperly Delegated Government Authority to 

an Outside Expert 

As the holder of Congressionally-delegated government authority, the Secretary may not 

re-delegate her public duties to a private entity. While it is permissible for agencies to adopt 

industry consensus standards or to rely on private input, see Town Constr. Co. v. OSHRC, 847 

F.2d 1187, 1190 (6th Cir. 1988), the government must retain ultimate discretion in deciding on 

regulatory or enforcement action, see Wallace v. Currin, 95 F.2d 856, 865-66 (4th Cir. 1938). 

While the abrogation of government duty is unconstitutional under any circumstances, the “most 

obnoxious” form is a delegation “to private persons whose interests may be and often are adverse 

to others in the same business,” see Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936), or 

“whose objectivity may be questioned on grounds of conflict of interest,” see Sierra Club v. 

Sigler, 695 F.2d 957, 962 (5th Cir. 1983). 

Here, the Secretary has run afoul of basic non-delegation principles by ceding her 

enforcement authority to Mr. Wertheimer, who was under retainer by the Damour family while 

working with and testifying for the Secretary. She used Mr. Wertheimer, rather than any OSHA 

official, to explain the citation and elaborate on the means for selecting abatement measures. 

Moreover, she repeatedly indicated that Respondent would have to hire an expert “similar” to 

Mr. Wertheimer to determine the abatement measures for specific sales events. See Tr. 528. 

Such indiscriminate reliance upon an outside expert shows a complete abdication of government 

authority. Without any “competence” in crowd management or crowd control, the Secretary 

lacks discretion to choose among Mr. Wertheimer’s suggestions or to apply them in this case. 

See Tr. 673, 683, 687, 770, 831, 835-37. If she intends to bring future crowd hazard citations, 

she will once again have to consult with the likes of Mr. Wertheimer to determine what action is 

necessary. Respondent, meanwhile, must depend on the same pool of private individuals: 
70 

Mr. Ciuffo could only name one person who was “competent in the field of crowd management,” 

see Tr. 768-69, and Mr. Wertheimer could only name five, see Tr. 471-73. The Secretary’s 

delegation is particularly “obnoxious” considering Mr. Wertheimer’s conflicts of interest and the 

bias and subjectivity of his views. See Tr. 465-70. If the Secretary wins this case, it would 

translate directly into more business for Mr. Wertheimer, since his primary abatement suggestion 

is for retailers to hire crowd management experts like him. It would also serve to legitimate his 

particular views about crowd management, which, far from representing a majority viewpoint or 

an industry custom, are “adverse to [those of] others in the same business.” See Carter v. Carter 

Coal Co., 298 U.S. at 311. Mr. Wertheimer believes that one prominent crowd management 

organization, the International Association of Assembly Managers (IAAM), has “blacklisted” 

him. See Tr. 469-70. (Yet, the Secretary legitimates this organization by citing its website in 

support of her feasibility argument, see Govt. Ex. 43, 45). His assertions about the need for 

crowd management in retail contradict the National Fire Protection Association’s Life Safety 

Code, as well as the conclusions of the retail industry. See Part III.B.2.b, supra. And, most 

importantly, his bias against Respondent for allegedly “screwing” the public cannot be denied. 

See Tr. 461. 

9. The Citation Is Directed to an Issue of Public Safety Outside of 

OSHA’s Jurisdiction 

Finally, the Secretary’s citation is flawed because it improperly targets an area of public 

safety outside of OSHA’s jurisdiction and within the State’s traditional police power. The OSH 

Act is a limited-purpose statute, meant simply to “assure safe and healthful working conditions” 

by “prevent[ing] personal injuries and illnesses arising out of work situations.” See OSH Act, 

preamble and § 2(a) (emphasis added). Like all federal statutes, its application begins with “the 

assumption that the historic police powers of the States are not to be superseded.” See Gade v. 
71 

Nat’l Solid Wastes Mgmt. Ass’n., 505 U.S. 88, 111 (1992); see also Kelly v. State of Washington,

302 U.S. 1, 13 (1937) (assumption against federal preemption of state power is “especially 

strong” where the state aims “to protect the lives and the health of its people”); Toy Mfrs. of 

Amer. v. Blumenthal, 986 F.2d 615, 602 (2d. Cir. 1992) (federal Hazardous Substances Act did 

not preempt Connecticut statute governing the contents of safety labels on toys because “child 

safety . . . lies at the heart of the states’ police powers”); Richmond Boro Gun Club, Inc. v. City 

of New York, 97 F.3d 681 (2d. Cir. 1996) (federal statutes governing Civilian Marksmanship 

Program did not preempt city ordinance criminalizing transfer or possession of certain assault 

weapons). “Congress did not intend the Act to apply to every conceivable aspect of employeremployee relations,” and not every “condition of employment” is a potential “hazard” within the 

meaning of the General Duty Clause. See Amer. Cynamid. Co., 9 BNA OSHC 1596 No. 79-

5762, 1981 WL 18872, at *2 (OSHRC). 

In Gade, the Supreme Court recognized the limited reach of the OSH Act by instructing 

that it could only preempt an Illinois statute insofar as that statute “directly, substantially and 

specifically regulat[ed] occupational safety and health.” See Gade, 505 U.S. at 107. The Court 

cautioned that the OSH Act should not preempt “state laws of general applicability (such as laws 

regarding traffic safety or fire safety)” because they “regulate workers simply as members of the 

general public.” See id. In Ramsey Winch, likewise, the Tenth Circuit implicitly rejected any 

OSHA foray under the General Duty Clause into traditional areas regulated by the state’s police 

power such as the regulation of workplace violence potentially triggered by allowing guns in 

workplace parking lots. See Ramsey Winch, 555 F.3d at 1204-05. And in American Cynamid, 

the Commission found that an employer’s policy of excluding women from working in a 
72 

manufacturing plant out of concerns for “fetus protection,” although discriminatory, was not a 

“hazard” within the meaning of the Act. See Amer. Cynamid, 1981 WL 18872. 

Here, by wading into an area that does not “directly, substantially, and specifically” 

concern “occupational safety and health,” the Secretary steps outside of her limited jurisdiction. 

Cf. Gade, at 107. Nassau County maintains a police force for the general protection of its 

citizens, and its duties include responding to the unpredictable, violent actions of unruly crowds. 

Before 2008, the Nassau County Police Department had taken active efforts to control crowds 

using their lights and bullhorns during Blitz Day sales at the Store. See Tr. 237-38. In 2008, 

Officer Malley told Sal D’Amico that he could obtain police assistance with crowd control by 

calling the local precinct. See Tr. 238. The police promised assistance and initially provided 

support according to plan. See Resp. Ex. 145(a), at 188-89, 193-94; Tr. 1110. When the crowd 

became unruly, employees instinctively turned to the police (as anyone in their situation would 

have done from a basic understanding of the functions and purposes of government). See

Tr. 105, 1017, 1094. And when the police arrived and restored order in “a matter of seconds,” 

see Tr. 174, they reinforced this basic understanding. Nassau County’s perception of this matter 

as something within its traditional police power is further evidenced by the involvement of the 

Nassau County District Attorney’s Office. 

Yet, the Secretary would have employees, rather than police, “reinstate orde[r] should a 

crowd become unruly.” See Tr. 72. She would have employees, rather than police “protect 

[themselves] and customers from a crowd that [had] become unruly.” Id. In doing so, she turns 

the OSH Act from a limited-purpose labor law to a federal mandate for the establishment of an 

employee defense force. She would have OSHA “regulate workers simply as members of the 

general public.” Cf. Gade, at 107. Area Director Ciuffo seemed to understand the flaws in the 
73 

Secretary’s logic by conceding that “confronting an unruly crowd” was “a different issue than 

crowd management” and that it would not be “appropriate” to give employees “self defense” 

training like police receive. See Tr. 847-48. Human beings are simply not “amenable to control” 

like the traditional subjects of OSHA regulation. See Megawest, 1995 WL 383233, at *8-9. The 

Secretary’s thinly disguised efforts to turn unpredictable anti-social behavior into a “workplace 

hazard” depart from the OSH Act’s limited purpose and should not be permitted. 

IV. 

CONCLUSION 

For the above reasons, Respondent asks the Court to vacate the Secretary’s citation. 

DATED: October 26, 2010 BY: _/s/ Baruch A. Fellner___________ 

Baruch A. Fellner 

Jason C. Schwartz 

Daniel P. Rathbun 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, NW 

Washington, D.C. 20036-5303 

Tel: (202) 955-8500 

Fax: (202) 467-0539 

Attorneys for Walmart Stores, Inc. 
74 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

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HILDA L. SOLIS, Secretary of Labor, 

United States Department of Labor, 

 Complainant, 

 v. 

WAL-MART STORES INC., 

 Respondent. 

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OSHRC DOCKET 

No. 09-1013 

[PROPOSED] ORDER VACATING THE CITATION

Upon consideration of the evidence presented at the hearing and the parties’ post-hearing briefs, 

the citation is VACATED. 

Dated: _______, 2010 BY THE COMMISSION: 

 _________________________ 

 Judge Covette Rooney 
75 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

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HILDA L. SOLIS, Secretary of Labor, 

United States Department of Labor, 

 Complainant, 

 v. 

WAL-MART STORES INC., 

 Respondent. 

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OSHRC DOCKET 

No. 09-1013 

CERTIFICATE OF SERVICE

I certify that all parties have consented that all papers required to be served may be served and 

filed electronically. I further certify that a copy of Respondent’s Post-Hearing Brief and 

Respondent’s Statement of Facts and Proposed Findings of Fact were electronically served on 

October 26, 2010 on the following parties: 

Jeffrey Rogoff 

rogoff.jeffrey@dol.gov 

Sudwiti Chanda 

chanda.sudwiti@dol.gov 

Darren Cohen 

cohen.darren@dol.gov 

Office of the Solicitor 

U.S. Department of Labor 

201 Varick Street, Room 983 

New York, New York 10014 

Tel: (646) 264-3669 

Fax: (646) 264-3660 

___/s/ Baruch A. Fellner 

Baruch A. Fellner 

BFellner@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, NW 

Washington, D.C. 20036-5303