FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

November 14, 2011

ORDER DENYING SECRETARY’S MOTION

TO SUPPLEMENT THE RECORD

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Oxbow Mining, LLC, (“Oxbow”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). An evidentiary hearing was held in this proceeding, along with other cases, on October 18 and 19, 2011. One of the matters that was adjudicated at the hearing was Citation No. 8469436, which alleges a violation of section 75.202(a) of the Secretary’s safety standards. 30 C.F.R. § 75.202(a). In that citation, MSHA Inspector Jack Eberling alleged that when the cited “rock was barred down, a large rock broke off and rolled into the walkway.”

            On October 24, 2011, the Secretary filed a motion to supplement the record. In the motion, the Secretary alleges that two of Oxbow’s witnesses testified that the “uncontrolled material at issue in Citation No. 8469536 . . . remained against the rib wall and/or in the mesh screen after being barred down.” (Motion at 1). She avers that this testimony is directly contradicted by a response provided by Oxbow in the Secretary’s first request for admissions and first set of interrogatories. When asked to admit in Request for Admission No. 9 that “a portion of the loose rock . . . rolled into the walkway when it was barred down from the wire mesh,” Oxbow denied the request for admission. Id. When asked to explain its denial in Interrogatory No. 12, Oxbow objected to the interrogatory as overly “broad and burdensome” but then went on to state that “when the rock was barred down from the rib screen it hit the mine floor and that portions of it did roll toward the tailpiece.” Id. at 2.

            The Secretary seeks to have Oxbow’s answer to Interrogatory No. 12 admitted into evidence. She states that the testimony of Inspector Eberling directly contradicted the testimony of Oxbow’s witnesses on “a number of important points,” including with respect to what happened when an Oxbow miner barred down the cited rock. Oxbow’s witnesses testified that the rock fell behind the wire mesh that had been previously installed on the rib. The inspector testified that a large portion fell into the entry. The inspector relied on this fact when he determined that a significant and substantial violation of section 75.202(a) occurred. The Secretary argues that the “[a]ssessment of credibility is . . . one of the most important findings which the Court will be required to make in determining the fact of violation and the appropriate criteria alleged. . . . .” Id. at 2.

            Counsel for the Secretary admitted that she “erred’ in failing to move the admission of the discovery responses into the record at the hearing. She argues that admitting the answer to interrogatories will not prejudice Oxbow because such answers are “Respondent’s own statements, the subject of which (how the rock fell) was examined by Respondent at the hearing.” Id. at 2.

            Oxbow opposes the motion. Oxbow agrees the witness credibility was a key component in this case. It argues that Federal Rule of Evidence 613 (“Fed. R. Evid. 613”) allows for impeachment of a witness by proof of a prior inconsistent statement. In this instance, however, there is no basis for the Secretary’s assertion that Oxbow’s responses to interrogatories were ever adopted or ratified by the miners who testified. As a consequence, the interrogatory answer cannot be used to impeach these witnesses. More importantly, Fed. R. Evid. 613(b) prohibits “extrinsic evidence of a prior inconsistent statement of a witness unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to also question the witness about the alleged prior inconsistent statement.” (Oxbow Resp. at 2). Oxbow argues that, because counsel for the Secretary was in possession of the interrogatory response at the hearing and failed to question Oxbow’s witnesses about the response, it was “prejudiced by its inability to question the witness about the alleged prior inconsistent statement.” Id.

            I find that the Secretary’s motion should be denied for three reasons. First, any matter admitted in a request for admission is “conclusively established for the purpose of the pending proceeding.” (Commission Procedural Rule 58(b); 29 C.F.R. § 2700.58(b)). In this case, Oxbow denied the request for admission. As stated above, in response to the Request for Admission No. 9, Oxbow denied that “a portion of the loose rock . . . rolled into the walkway when it was barred down from the wire mesh.” (Oxbow’s discovery responses at 8). As a consequence, I cannot deem that the facts contained in this statement were conclusively established.

            Second, although Commission judges are not bound by the Federal Rules of Evidence, I believe that it is appropriate to take Rule 613 into consideration because it is an indication of what I will call Federal common law on evidentiary matters relating to the impeachment of witnesses. The rule states that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon . . . .” Fed. R. Evid. 613(b). The rule goes on to state that this “provision does not apply to admissions of a party-opponent . . . . “ Id. In this instance, the miners who testified on behalf of Oxbow were not given the opportunity to explain or deny the response to the interrogatory.

            Third, the interrogatory response that the Secretary seeks to introduce is not clear on its face. In the response to the interrogatory, Oxbow states that “when the rock was barred down from the rib screen it hit the mine floor. . . .” The response does not state where the rock hit the floor. In the same response, Oxbow stated that “portions of it did roll toward the tailpiece.” The response does not state how large these “portions” were or how far they rolled. These details are important and they illustrate why extrinsic evidence of prior inconsistent statements should not be admitted without complying with the requirements of Fed. R. Evid. 613(b). Further uncertainty as to the meaning of the interrogatory response is created by Oxbow’s denial of Request for Admission No. 9, quoted above. The response to the interrogatory and the denial of the request for admission appear to be at least partially inconsistent. For that reason, the interrogatory response the Secretary seeks to enter into the record has little, if any, evidentiary value.  

            For the reasons set forth above, the Secretary’s motion to supplement the record is DENIED.

                                                                         /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202

Page H. Jackson, Esq., Jackson Kelly PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202-1958

RWM