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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

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: 

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.
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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 
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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.

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)