let alone whether the facts reflect a violation of OSHA standards. In addition, that safety report also
notes that the overall safety conditions were “good” and that “Wimpy holds reg{ular]/daily safety
meetings.” (/d.) In order to evaluate whether the failure to discipline Waldruff reflects indifference
to employee safety, the jury would have to know much more about the facts of that situation,
including allowing L.E. Myers an opportunity to explain why its records reflect no discipline of
Waldruff for this situation. And that is only one of the approximately 30 such reports that the
government proposes to introduce. The likelihood of jury confusion and distraction is apparent.

The government points to three cases as support for admitting the safety reports and
disciplinary records: A.E. Staley Mfg. Co. v. Sec. of Labor, 295 F.3d 1341 (D.C. Cir. 2002), McKie
Ford, Inc. v. Sec. of Labor, 191 F.3d 853 (8th Cir. 1999), and Georgia Elec. Co., 595 F.2d 309.
Notably, each of those cases involved review of a civil administrative proceeding, not a criminal jury
trial.

In A.E. Staley, the defendant admitted the charged OSHA violations but disputed that the
violations were willful. 295 F.3d at 1343. The Occupational Safety and Health Review Commission
determined that previous dust explosions, internal audits and a survey by the National Institute for
Occupational Safety and Health had put the defendant on notice of serious problems, including the
improper location of certain equipment and lack of employee training. Jd. at 1344. The Commission
considered evidence of a prior mock OSHA inspection conducted by the defendant which found
unsafe electrical equipment in the same places where the OSHA inspectors subsequently found the
violations at issue in the case. Jd. at 1346. The Commission also considered an earlier internal
safety audit report prepared by a company employee who had identified unprotected electrical

equipment and specifically noted potential liability for OSHA penalties. Jd. The employee’s

14


The Seventh Circuit has established a four-factor inquiry to determine the admissibility of
other acts evidence pursuant to Rule 404(b), under which the government bears the burden of
proving that:

(1) the evidence is directed toward establishing a matter in issue other than the

defendant’s propensity to commit the crime charged; (2) the evidence shows that the

other act is similar enough and close in time to be relevant to the matter in issue; (3)

the evidence is sufficient to support a jury finding that the defendant committed the

similar act; and (4) the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice.
U.S. v. Jones, 389 F.3d 753, 757 (7th Cir. 2004) (quoting U.S. v. Long, 86 F.3d 81, 83 (7th Cir.
1996)).

The government claims that the Rule 404(b) evidence is directed to establishing that L.E.
Myers’ violation of the regulations was “willful.” After considering submissions and argument by
the parties, the court determined that the jury will be given the following definition of “willful”:

A violation of an OSHA regulation or safety standard is willful if the employer has

actual knowledge that its actions do not comply with the regulation or standard, and

the employer intentionally disregards the requirements of the regulation or standard

or is deliberately indifferent to those requirements. The employer need not have

acted maliciously or specifically intended to harm its employees.

A. Prior OSHA Citations

The government seeks to introduce evidence of five prior civil OSHA citations issued to L.E.
Myers in situations where, the government contends, L.E. Myers violated OSHA standards identical
or similar to those charged in the indictment. The government argues that the citations demonstrate
L.E. Myers’ knowledge of the OSHA standards and deliberate indifference to the requirements of

those standards. The government points to a number of decisions, including a recent decision by the

Seventh Circuit, Lakeland Enter. of Rhinelander, Inc. v. Chao, 402 F. 3d 739 (7 Cir. 2005),


the third party, not the defendant, was the cause of the plaintiff's injuries. 765 F.2d at 250-51. In
Scaramuzzo, an employment discrimination action, the District Judge granted a motion in limine to
exclude evidence of other discrimination charges that had been filed against the defendant or the
settlement of those charges, on public policy grounds as well as undue prejudice. 501 F. Supp. at
732-34, In contrast, the precedents, including Lakeland, support the admission of prior OSHA
citations as evidence of willfulness.

The government cites U.S. v. Prewitt, 34 F.3d 436, 439 (7th Cir. 1994), in which the Seventh
Circuit stated that Rule 408 should not be applied to criminal cases. The court held that it was not
error to admit statements made by the defendant in the course of settlement negotiations with the
Indiana Secretary of State’s Securities Division as evidence in a trial for mail fraud. /d. The Seventh
Circuit stated that reading Rule 408 “suggests that it should apply only to civil proceedings,” and
“[nJothing in Rule 408 specifically prohibits that receipt of evidence in criminal proceedings
concerning the admissions and statements made at a conference to settle claims of private parties.”
Id. L.E. Myers argues that Prewitt applies only to statements regarding liability and does not
“suggest that otherwise irrelevant evidence - such as the fact that there was a mere agreement to
compromise a claim - would be admissible.” (Def.’s Mem. Re Proffered Settlements of Civil OSHA
Citations at 2 n. 1) (emphasis omitted.) However, in each of the settlement agreements, L.E. Myers
withdrew its contest of the relevant citation and agreed to abate or correct the violations. L.E. Myers
denies that such an agreement is an admission that the violation occurred, and argues that the
violation is “mooted” when it involves a past event, such as the failure to hold a pre-job briefing.
(/d. at 4.) L.E. Myers further argues, “such agreements are intended to address ameliorative action

that an employer will take to ensure future violations do not occur.” (/d.) However, that argument

10


(a)

(b)

(©)

Citations issued in 1984, 1988 and 1989 charged violations of 29 C.F.R. §
1926.950(c)(1) (minimum approach distances).? The government argues that
this standard requiring employees to maintain a minimum distance from
energized lines unless either the employee or the energized line is guarded by
insulation is nearly identical to 29 C.F.R. § 1910.269(1)(2) at issue in this
case, (Govt.’s Resp. at 3, 5.)

A citation issued in 1989 charged violation of 29 C.F.R. § 1926.21(b)(2)
(training requirements). The government argues that this training
requirement is similar to 29 C.F.R. § 1910.269(a)(2)(i) at issue in this case.
(Govt.’s Resp. at 3, 5.)°

A citation issued in 1994 charged violation of 29 C.F.R. § 1926.955(c)(2)
(job briefing requirements). The government argues that this requirement
parallels the job-briefing requirement of 29 C.F.R. § 1910.269(c) at issue in
this case. (Govt.’s Resp. at 3, 5.)

Citation Nos. 1045210, 1867795, 104365564, 106275761, 103006110.*

Having reviewed the citations at issue, the court concludes that, with one exception, the
regulations under which the citations were made are similar enough to the regulations at issue here,
and close enough in time that proof of the continued disregard of the requirements might evidence
willfulness in the acts at issue here. See Georgia Elec. Co. v. Marshall, 595 F.2d 309, 319 (5" Cir.
1979) (allowing evidence of a prior OSHA violation because “[a]though not a violation of the

identical provision cited here, this violation surely should have made the Company cognizant both

?As will be discussed below, this 1989 citation charged a violation of Maryland state
regulations, not OSHA.

} The government actually stated that this 1989 citation charged violation of § 1926.22
(not § 1926.21(b)(2)), and that the Regulation at issue was § 1910.269(c) (not §
1910.269(a)(2){i)), but those appear to be mistakes or typographical errors.

‘ The government tendered to Defendant’s counsel and the court copies of these citations

(as well as agreements to settle the citations) it proposed to introduce into evidence. Those

documents have not been filed and are not in the record at this time. They will be cited herein as
” and “Settlement Agt. dated a

“Citation No.

7


allowing the admission of prior violations of the OSHA standards as evidence of willfulness. In
Lakeland, the Seventh Circuit affirmed a decision by the Occupational Safety and Health Review
Commission assessing a civil penalty against the defendant for willfully violating an OSHA
regulation regarding trenching. 402 F.3d at 741. The Seventh Circuit observed that the
Administrative Law Judge’s decision that the violation was willful was supported by evidence
including six OSHA citations since 1990, at least three of which were conceded by the defendant.
Id. at 748. The Lakeland decision supports the government’s position that prior citations may be
admitted to demonstrate that an OSHA violation was willful, satisfying the first of the four factors
set out in Jones. However, the Lakeland case was an administrative proceeding. In this case, a
criminal jury trial, the court has a duty to determine whether the proposed evidence meets all of the
criteria to be admissible under Rule 404(b).

The second factor under Jones is whether the other acts are similar enough and close enough
in time to be relevant. L.E. Myers argues that none of the prior citations involved violations of the
regulations at issue in this case, which are under 29 C.F.R. § 1910.269 governing maintenance work
on electrical transmission systems. Rather, the prior citations involved the construction regulations
under 29 C.F.R. § 1926.950. The government responds that, although the regulations cited are
different, the requirements of those regulations are similar enough to those at issue in this case such
that L.E. Myers’ continued disregard of those requirements is evidence of willfulness. (Govt.’s
Resp. at 3-5.) [Dkt 60.]

The five prior citations charged L.E. Myers with violating three regulations:


entered into by L.E. Myers to settle each citation except Citation No. 104365564, discussed above.*
The government claims that L.E. Myers’ settlement of the citations is an admission sufficient to
support a jury finding that L.E. Myers committed the violation claimed.

L.E. Myers objects to the admission of the settlement agreements, arguing that settlement
agreements are not admissions of guilt or liability but, rather, “compromises between potential
litigants made for a variety of practical purposes, including the avoidance of the costs and
uncertainties of litigation.” (Def.’s Mem. Re Proffered Settlements of Civil OSHA Citations at 1.)
[Dkt 79.] L.E. Myers cites Fed. R. Evid. 408, which provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or

offering or promising to accept, a valuable consideration in compromising or

attempting to compromise a claim which was disputed as to either validity or
amount, is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is
likewise not admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of compromise
negotiations. This rule also does not require exclusion when the evidence is offered

for another purpose, such as proving bias or prejudice of a witness, negativing a

contention of undue delay, or proving an effort to obstruct a criminal investigation

or prosecution.

(Emphasis added.) L.E. Myers also cites two civil cases applying Rule 408: McInnis v. A.M.F., Inc.,
765 F.2d 240, 247 (1st Cir. 1985) and Scaramuzzo v. Glenmore Distilleries, Co., 501 F. Supp. 727,
732-33 (N.D. Ill. 1980). (Def.’s Mem. Re Proffered Settlements of Civil OSHA Citations at 2.)
Neither of those cases is on point here. Mc/nnis was a products liability suit against a motorcycle

manufacturer. The First Circuit held it to be reversible error to admit evidence of a settlement

between the plaintiff and a third party because the only purpose of the evidence was to suggest that

*The government states that it has not been able to obtain a copy of the settlement
agreement regarding that citation. (Govt.’s Resp. Def.’s Mem. Re Proffered Settlements of Civil
OSHA Citations at 6.) [Dkt 80.]


OF

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
No. 02 CR 1205
v.
Magistrate Judge Geraldine Soat Brown

THE L.E. MYERS COMPANY,
Defendant.

wevevevevyy

MEMORANDUM OPINION AND ORDER
At a hearing on April 25, 2005, a ruling was made on the remaining issues regarding
Defendant’s Motion Jn Limine Regarding “Other Bad Acts.” [Dkt 55.] This opinion sets out the

reasons for that ruling.

BACKGROUND

Defendant the L.E. Myers Company (“L.E. Myers”) was charged in two counts of an
indictment with violating a section of the Occupational Safety and Health Act (*OSHA”), 29 U.S.C.
§ 666(e), which provides:

Any employer who willfully violates any standard, rule, or order promulgated

pursuant to section 655 of this title, or of any regulations prescribed pursuant to this

chapter, and that violation caused death to any employee, shall, upon conviction, be

punished by a fine of not more than $10,000 or by imprisonment for not more than

six months, or by both; except that if the conviction is for a violation committed after

a first conviction of such person, punishment shall be by a fine of not more than

$20,000 or by imprisonment for not more than one year, or by both.

Specifically, the indictment charges that L.E. Myers was engaged in the repair and

maintenance of high voltage power transmission lines on towers located in various locations in


B. Safety Inspections and Disciplinary Records

The evidence at issue in this portion of Defendant’s Motion relates to the allegations in the
indictment that L.E. Myers’ failure to ground the work site properly caused Wade Cumpston’s death.
(See Feb. 11, 2005 Hrg. Tr. at 4-5.) The government has identified approximately 30 of L.E. Myers’
“Job Safety Analysis Reports,” which document observations made by L.E. Myers’ employees while
inspecting work sites. (Govt.’s Resp., Ex. D.) The safety reports appear to span a time period from
1998 to 2000, close in time to the events charged in the indictment. The government intends to
introduce the safety reports in conjunction with a summary of L.E. Myers’ disciplinary records for
the same period to demonstrate that L.E. Myers failed to discipline its employees for the violations
reflected in the safety reports. (April 13, 2005 Hrg. Tr. at 111-12.) The government argues that this
evidence shows L.E. Myers’ indifference to employee safety. (/d. at 109, 112, 118, 124-25.)

L.E. Myers objects to the admission of the safety reports on a number of grounds. L.E.
Myers argues that the internal safety reports do not show violations of OSHA standards, but rather
reflect violations of its own internal safety procedures and policies, which, it argues, are stricter and
broader than that required by the OSHA regulations. (/d. at 127-28, 133-34, 139.) It further argues
that although some of those reports reference violations of its grounding procedures, the work sites
are different in the type of work involved, the type of equipment being used, and the type of
electrical systems involved, from the situation resulting in Cumpston’s death. (Def.’s Mot. at 7;
April 13, 2005 Hrg. Tr. at 134.)

The government argues that the safety reports and disciplinary records show L.E. Myers’
indifference to employee safety and, specifically, L.E. Myers’ plain indifference to requirements for

equipotential grounding, a safety requirement that the government claims was violated in the

12


actually supports the admission of the agreements as evidence of willfulness if the government
proves the charges alleged in the indictment.®

In addition, the 1988 settlement agreement for Citation No. 1867795 provides, “By entering
into this agreement, the employer does not admit that it violated the cited standards for any litigation
or purpose other than a subsequent proceeding under the Occupational Safety and Health Act.”
(Settlement Agt. dated March 25, 1988 at 2) (emphasis added.) That language suggests that L-E.
Myers was aware that its settlement of that citation could be used in other OSHA proceedings as an
admission of liability.

The final factor under the Jones case is whether the probative value of the evidence is
outweighed by unfair prejudice. Initially, the government had submitted excerpts from an OSHA
web page with descriptions of the incidents giving rise to the citations, including facts not contained
in the citations or settlement agreements. The government will not be permitted to introduce those
web page descriptions. On the other hand, the court concludes that the evidence proffered by the
government of the citations and the settlement agreements is not unfairly prejudicial.

Accordingly, L.E. Myers’ Motion Jn Limine is granted as to Citation No. 104365564, and
denied as to Citation Nos. 103006110, 106275761,1867795, and1045210. L.E. Myers may propose

a limiting instruction to be read when the citations are introduced.

°L.E. Myers submits the affidavit of Stephen C. Yohay, who has served as counsel for
L.E. Myers, to describe the process by which such settlement agreements are reached, and to
support its position that the settlement agreements fail to demonstrate any admission by
Defendant regarding the alleged violations. The government objects to the court’s consideration
of that affidavit. In view of the disposition of this issue, the government’s objection is moot.

1]


of the dangers of allowing its employees to work too close to live electric circuits and to the fact that
there were OSHA regulations on the subject that had to be followed”). The exception is Citation No.
104365564, which was a charge brought by Maryland state regulators. Although that citation refers
to 29 C.F.R. § 1926.950(c)(1), it also states, “This citation describes alleged violations of the
Maryland Occupational Safety and Health Act... and Regulations adopted thereunder.” (Citation
No. 104365564.) The government has not demonstrated that the Maryland laws and regulations are
similar enough to the OSHA regulations to be relevant to demonstrate willfulness in the present case.
Furthermore, the only evidence the government has proffered regarding that citation is the citation
itself. As will be further discussed below, the citation is not evidence that the charged acts were
committed. Accordingly, L.E. Myers’ Motion /n Limine is granted with respect to Citation No.
104365564.

The next factor under Jones is whether the evidence is sufficient to support a jury finding that
the defendant committed the similar act. The government has proffered copies of the citations issued
by OSHA. If the only purpose for which the government would use the citations were to show that
in 1999 and 2000, L.E. Myers had actual knowledge of the regulations, the citations alone might
arguably suffice. However, the government also wants to argue that L.E. Myers committed the acts
alleged in the prior citations, to demonstrate that the acts charged in the indictment were willful, i.e.,
that L.E. Myers intentionally disregarded the requirements of the standards or was deliberately
indifferent to those requirements. The citations alone, which are merely charges, are not proof that

the act charged was committed. To satisfy that factor the government has also proffered agreements


(iii) The employee is insulated from any other exposed conductive object, as during
live-line bare-hand work.

Id. § 1910.269(1)(2).

In relation solely to the death of Wade Cumpston, the indictment alleges that L.E. Myers
violated the following regulation:

Temporary protective grounds shall be placed at such locations and arranged in such

a manner as to prevent each employee from being exposed to hazardous differences

in electrical potential.

Id. § 1910.269(n\(3).

DISCUSSION
The government provided L.E. Myers’ counsel with notice of its intention to introduce
evidence pursuant to Fed. R. Evid. Rule 404(b).' L.E. Myers filed a Motion /n Limine Regarding
“Other Bad Acts.” After submissions and argument by the parties, the court issued rulings with
respect to certain of the government’s Rule 404(b) evidence. See, e.g., Order, April 13, 2005. [Dkt
78.| By the hearing on April 25, 2005, three types of evidence remained in dispute: (1) Prior OSHA

citations; (2) L.E. Myers’ internal safety audits; and (3) L.E. Myers’ disciplinary records.

'Fed. R. Evid. Rule 404(b) provides, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial... .

4


recommendation for further action was not accepted, a fact that the Commission properly considered.
Td. at 1347,

In McKie, the defendant’s employee was killed when his head was caught as he was riding
a freight elevator that had only three sides and no door, gate, or interlock safety device on the open
side, 191 F.3d at 855-56. In addition to the configuration of the elevator, which, the court stated,
“ma[de] the risk plainly obvious,” the Administrative Law Judge considered the fact that, after a
prior worker’s compensation claim resulting from an employee’s hand being caught in the freight
elevator, the defendant permitted its employees to continue to ride the elevator. /d. at 856, 857. The
court stated that “(t]he company did nothing of substance to prevent this dangerous practice.” /d.
at 857. The opinion also states without further elaboration that the defendant “had no meaningful
safety program.” /d. The court concluded that the Administrative Law Judge’s characterization of
the defendant’s conduct as plain indifference was permissible. /d.

Georgia Electric, like the present case, involved the death of an employee by electrocution.
Three months before the incident at issue, the defendant had been cited by OSHA as a result of an
electrocution that had occurred at another site when an employee got too near a power circuit. 595
F.3d at 313. The evidence showed that the defendant never made any effort to acquaint its
supervisory personnel with the OSHA standards. /d. at 319. In the present case, the government
points out that the Commission also considered the defendant’s apparent indifference to employee
safety in that case, but the opinion does not discuss any evidence admitted on that point except the
defendant’s admission that it made no effort to instruct its employees about OSHA requirements,

and the events of the incident resulting in the employee's death. /d. at 320.

15


L.E. Myers’ disciplinary records are relevant only if the safety reports are admitted, Defendant’s

Motion /n Limine is also granted with respect to the disciplinary records.

CONCLUSION
For the foregoing reasons, Defendant’s Motion /n Limine Regarding “Other Bad Acts” is
granted as to L.E. Myers’ “Job Safety Analysis Reports” and disciplinary records and as to Citation
No. 104365564, and denied as to the remaining OSHA citations. This ruling is in addition to, and

does not replace, previous rulings made on the record.

IT IS SO ORDERED. /
/ Geraldine Soat Brown
United States Magistrate Judge
April 27, 2005


special precautions, energy source controls, and personal protective equipment
requirements,

Id. § 1910.269(c).
In relation solely to the death of Blake Lane, the indictment alleges that L.E. Myers violated
the following four regulations:

Existing conditions related to the safety of the work to be performed shall be
determined before work on or near electric lines or equipment is started. Such
conditions include, but are not limited to, the nominal voltages of lines and
equipment, the maximum switching transient voltages, the presence of hazardous
induced voltages, the presence and condition of protective grounds and equipment
grounding conductors, the condition of poles, environmental conditions relative to
safety, and the locations of circuits and equipment, including power and
communication lines and fire protective signaling circuits.

Id. § 1910.269(a)(3);

Only qualified employees may work on or with exposed energized lines or parts of
equipment. Only qualified employees may work in areas containing unguarded,
uninsulated energized lines or parts of equipment operating at 50 volts or more.
Electric lines and equipment shall be considered and treated as energized unless the
[lockout/tagout procedures of § 1910.269(d) or the deenergizing lines and equipment
procedures of § 1910.269(m)] have been followed.

Jd. § 1910.269(1)(1);

When an unqualified person is working in an elevated position near overhead lines,
the location shall be such that the person and the longest conductive object he or she
may contact cannot come closer to any unguarded, energized overhead line than . .
- (1) [fJor voltages to ground 50kV or below — 10 ft. (305 cm).

Id. § 1910.333(c)(3)(i)(A); and

The employer shall ensure that no employee approaches or takes any conductive
object closer to exposed energized parts than set forth in Table R-6 through Table R-
10, unless: (i) The employee is insulated from the energized part (insulating gloves
or insulating gloves and sleeves worn in accordance with paragraph (1)(3) of this
section are considered insulation of the employee only with regard to the energized
part upon which work is being performed), or (ii) The energized part is insulated
from the employee and from any other conductive object at a different potential, or


Illinois, and that Blake Lane and Wade Cumpston, two employees of L.E. Myers, died from injuries
sustained by electrocution. Blake Lane died on or about December 28, 1999 while working on a
tower in Mt. Prospect, Illinois. Wade Cumpston died on or about March 25, 2000 while working
ona tower in Plainfield, Illinois. The indictment charges that L.E. Myers violated certain regulations
promulgated by the Secretary of Labor pursuant to OSHA, causing the deaths of Blake Lane and

Wade Cumpston.

THE INDICTMENT
In relation to the deaths of both Blake Lane and Wade Cumpston, the indictment alleges that
L.E. Myers violated the following three regulations:

Employees shall be trained in and familiar with the safety-related work practices,
safety procedures, and other safety requirements in this section that pertain to their
respective job assignments. Employees shall also be trained in and familiar with any
other safety practices, including applicable emergency procedures . . . that are not
specifically addressed by this section but that are related to their work and are
necessary for their safety.

29 CER. § 1910,269%a)(2)(i);

Qualified employees shall also be trained and competent in: (A) The skills and
techniques necessary to distinguish exposed live parts from other parts of electric
equipment, (B) The skills and techniques necessary to determine the nominal voltage
of exposed live parts, (C) The minimum approach distances specified in this section
corresponding to the voltages to which the qualified employee will be exposed, and
(D) The proper use of the special precautionary techniques, personal protective
equipment, insulating and shielding materials, and insulated tools for working on or
near exposed energized parts of electric equipment.

Id. § 1910.269(a)(2)(ii); and
The employer shall ensure that the employee in charge conducts a job briefing with

the employees involved before they start each job. The briefing shall cover at least
the following subjects: hazards associated with the job, work procedures involved,


situation that led to Cumpston’s death. (April 13, 2005 Hrg. Tr. at 109, 118, 124-25, 135.) The
government admits that it is not claiming that the problems noted in the safety reports violated the
OSHA standards. (/d. at 134.) Also, in response to a specific question, the government’s counsel
stated that the government does not believe that any of the safety reports relate to equipotential
grounding. (/d. at 135.) Rather, the government asserts that the safety records show numerous
incidents where L.E. Myers’ employees performed grounding incorrectly. (/d. at 134-35.)

The court concludes that the proposed evidence fails to meet the standards required by Jones
in order to be admissible under Rule 404(b). A significant problem is that the safety reports (which
are all the evidence the government intends to introduce as to each claimed incident) disclose little
about the facts of each situation.” Although each of the reports appears to mention some type of
grounding issue, it is unclear from the face of the report whether the grounding problem mentioned
in the report is in any way similar to the grounding problem that allegedly caused Cumpston’s death.
For example, a report dated February 9, 2000 of work being done in Bowling Green, Kentucky to
replace two steel poles states, “Boom truck was properly grounded. Bucket truck being used & Die
[unclear] Elec test date was good but the bucket truck wasn’t grounded. I advised Wimpy & he
grounded it.” (Govt.’s Resp., Ex. D, Bates No. LEM 9105.) The report lists the supervisor on that
job as Wendell “Wimpy” Waldruff. (/d.) Apparently, the government intends to introduce that
report and the summary of disciplinary records to show that L.E. Myers did not discipline Waldruff
for not grounding the bucket truck, or at least that no discipline is reflected on the records. However,

it is impossible to tell from the cryptic description in the report what degree of danger was involved,

"The government stated that it intends to introduce the safety reports and disciplinary
records as business records of L.E. Myers, and the statements therein as admissions. (April 13,
2005 Hrg. Tr. at 115-16.)

13


None of those cases support the admission of the type of evidence the government seeks here.
In each of the cases, the evidence supported the defendant’s prior awareness of the hazard that gave
rise to the subsequent charged violation, and the defendant’s failure to address that hazard. In
contrast, in the present case the safety reports do not provide enough detail about the problem to
know whether the hazard was the same as that which caused Cumpston’s death, or to know whether
the actions violated the particular OSHA regulations charged in the indictment or, indeed, any OSHA
regulation. Furthermore, most, if not all, of the safety reports reflect that corrective action was taken
on the spot. See, e.g., Govt.’s Resp., Ex. D, Bates No. LEM 8750 (Report dated March 13, 2000
stating, “Grounding problems were taken care of before leaving job site.”); id., Bates No. LEM 8873
(Report dated February 11, 2000 stating, “[H]ad crew move grounds closer to work site.”); id., Bates
No. LEM 9105 (Report dated February 9, 2000 stating, “I advised Wimpy & he grounded it.”); id.,
Bates No. LEM 8875 (Report dated February 9, 2000 stating, “No line grounds. Talked with
foreman{;] he will correct problems.”),

As previously noted, all three of those reported opinions reviewed the findings of an
administrative process assessing civil penalties for OSHA violations. In this criminal prosecution,
the court must consider the admissibility of the evidence under Rule 404(b), as well as the potential
for confusing the jury and causing unfair prejudice to the defendant.

The court concludes that the government has failed to establish the admissibility of the safety
reports, and, even if the safety reports were assumed, arguendo, to be admissible, the probative value
is outweighed by the potential for distracting and confusing the jury and for unfair prejudice to

Defendant. Accordingly, Defendant’s Motion Jn Limine is granted as to the safety reports. Because