**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIAAVE., N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9956/ FAX: 202-434-9949

 

January 13, 2021

 
| JONES  BROTHERS INC.,

   Contestant,

 

 

              v.

 

 

SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH        

ADMINISTRATION  (MSHA),

                Respondent.

 

 

SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH        

ADMINISTRATION  (MSHA),

                Petitioner, 

              v.

 

 

JONES  BROTHERS INC.,

                             Respondent.                                                                                               |   |   | CONTEST  PROCEEDINGS

 

Docket  No. SE 2016-0218-RM

Citation  No. 8817595; 04/06/2016

 

Docket  No. SE 2016-0219-RM

Citation  No. 8817596; 04/06/2016

 

Mine:  S.R. 141 Project, Dekalb Co.

Mine  ID: 40-03454

 

 

 

CIVIL PENALTY PROCEEDING 

 

Docket  No. SE 2016-0246

A.C.  No. 40-03454-410595

 

 

 

 

 

Mine:  S.R. 141 Project, Dekalb Co. |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**ORDER GRANTINGIN PART THE SECRETARY’S MOTION IN LIMINE**

**AND INSTRUCTIONSFROM THE COURT**

 

On January 11, 2021, the Secretary ofLabor (“Secretary”) filed an Objection to the Scope of Expected Testimony andMotion in Limine (“Secretary’s Motion”) where the Secretary objected to theexpected testimony of Respondent’s witnesses Martin McCullough, Kevin Hinson,Anthony Williams, Joey Odom, Ben Coleman, and Steve Wright as “irrelevant andimpermissibly exceed[ing] the scope of testimony permitted by lay witnesses,”and further objected to the expected testimony of Wright as not experttestimony. Sec’y Mot. at 2.

 

After reviewing the filing andRespondent’s list of witnesses, the court will permit McCullough, Hinson,Williams, Odom, Coleman, and Wright to testify as fact witnesses. However,Wright will not be permitted to testify as an expert.

 

Respondent has described the scope of Wright’sproposed testimony as follows:

 

 

For nearly 40 years [Wright] has seenand operated borrow pits similar to what Jones Bros. did at the SR-141 job toproduce solid graded rock in Tennessee and other states and although MSHA wouldbe aware of these borrow pits, on both private land near a road project rightof way or on the right of way itself, MSHA never sought to exercisejurisdiction over them unless the rock was being processed substantially morethan by use of a slotted bucket. Mr. Wright may offer both factual and experttestimony concerning how the Interagency Agreement has been interpreted and/orapplied.

 

WitnessList for Jones Brothers, Inc. at 3. Wright does not qualify as an expert, perRule 702 of the Federal Rules of Evidence, which states:

 

A witness who is qualified as an expertby knowledge, skill, experience, training, or education may testify in the formof an opinion or otherwise if:

 

(a) the expert’s scientific, technical,or other specialized knowledge will help the trier of fact to understand theevidence or to determine a fact in issue;

 

(b) the testimony is based on sufficientfacts or data;

 

(c) the testimony is the product ofreliable principles and methods; and

 

(d) the expert has reliably applied theprinciples and methods to the facts of the case.

 

Fed. R. Evid.702. Wright’s purported knowledge of borrow pits unrelated to this matter and priorMSHA enforcement practices will not help this Court “understand the evidence ordetermine a fact in issue”—specifically whether Respondent’s operation fallsunder the jurisdiction of the Mine Act in this specific instance. Further,Wright’s proposed testimony consists of legal conclusions, including that “MSHAnever sought to exercise jurisdiction . . . unless the rock was being processedsubstantially more than by use of a slotted bucket” and testimony regarding “howthe Interagency Agreement has been interpreted and/or applied.” Witness Listfor Jones Brothers, Inc. at 3. “Expert testimony that consists of legalconclusions” is not admissible under Rule 702 because it “cannot properlyassist the trier of fact” in “understand[ing] the evidence” or “determin[ing] afact in issue.” *Burkhart v. WMATA*, 112 F.3d 1207, 1212 (D.C. Cir. 1997).Therefore, this Court will not permit Wright to testify as an expert.

 

Additionally, the parties have submittedproposed exhibits in this matter. The Court has reviewed the documents andissues the following guidelines with respect to introduction of exhibits attrial. The Secretary has submitted what is identified as exhibit S-26, which isthe 86-page contract between the Tennessee Department of Transportation and Respondent.The document contains many pages of information pertaining to the hiring ofillegal immigrants, prevailing wage pay scales and classification of workers,fuel adjustment worksheet forms (blank), non-discrimination provisions,certificate of liability insurance forms, surety bond forms (unsigned),information regarding traffic control, road markings and signage, and otherextraneous information. The Secretary is directed to redact any extraneouspages not intended for use at trial from the exhibit before offering it intoevidence. Similarly, any drawings contained in exhibit S-27 that the Secretarydoes not intend to rely on shall be redacted from the exhibit when offered attrial.

 

Respondent has submitted exhibit R-1,which is a copy of responses provided by the Secretary to propounded discovery.My Prehearing Order specifically states that discovery responses shall not besubmitted to the Court. Additionally, the Court finds, as it did with respectto the Secretary’s proffer of deposition transcripts, that it is not proper tooffer the document as an exhibit in the Respondent’s case in chief. It may beused by the parties for refreshing recollection, past recollection recorded,and for impeachment.

 

The Court recognizes that the Respondenthas not submitted any proposed witnesses to testify to the underlyingviolations cited against it. The Court informed the parties at the inception ofthis matter that the hearing would encompass the jurisdiction issue as well asan adjudication of all related violations. The Respondent is directed to eitherinform the Court whether it intends to accept the violations as written, orconfirm that they are prepared to litigate the violations at the January 26,2021 hearing. This matter will not be bifurcated.

 

It is so**ORDERED**this thirteenthday of January 2021**.**

 

 

 

 

/s/Priscilla M. Rae

                                                            PriscillaM. Rae

                                                            AdministrativeLaw Judge

 

 

 

 

 

Distribution:

 

WillowEden Fort, Attorney, Office of the Solicitor, 618 Church Street, Suite 230Nashville, TN 37219 (Fort.Willow@dol.gov)

 

MichaelD. Oesterle, Esq., KING & BALLOW, 1100 Union Street Plaza 315 Union StreetNashville, TN 37201 (moesterle@kingballow.com) 

 

DouglasR. Pierce, Esq., KING & BALLOW, 1100 Union Street Plaza 315 Union StreetNashville, TN 37201 (dpierce@kingballow.com)