UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

______________________________________ 

Secretary of Labor, ) 

 ) 

 Complainant, ) 

 ) 

 v. ) OSHRC Docket Nos. 13-1101 and 
) 13-1102 

American Recycling & Manufacturing Co., Inc., ) 

 ) 

 ) CONSOLIDATED FOR DISCOVERY 

Respondent. ) AND TRIAL PURPOSES 

 ) 

______________________________________ ) 

 

ORDER DENYING WITHOUT PREJUDICE SECRETARY’S RENEWED MOTION IN 
LIMINE TO EXCLUDE THE TESTIMONY OF DOUGLAS MILLER 

 

I. FACTS 

 

 An Occupational Safety and Health Administration (OSHA) compliance officer 
conducted inspections of Respondent’s worksite in Rochester, New York from December 30, 
2012 through January 30, 2013. On May 30, 2013, OSHA issued two willful and serious 
citations with a proposed penalty of $152,400 in a case later docketed as no. 13-1101.1 On the 
same day, OSHA also issued a two item, serious citation with a proposed penalty of $7,000 in a 
case later docketed as no. 13-1102. Thereafter, Respondent filed its notices of contest. On 
August 22, 2013, the Secretary filed his complaints in these two cases. In September, 2013, 
Respondent filed its answers. These two cases have been consolidated for discovery and trial 
purposes. 

 On August 11, 2014, Respondent served its expert report by Douglas Miller upon the 
Secretary. The scope of Mr. Miller’s expert report encompasses all the citation items at issue, 
except in Docket No. 13-1101, Citation 1, Items 6, 8, 9, and 12, and Docket No. 13-1102, 


1 Docket No.13-1101 also involves a worker amputation. 

Citation 1, Item 1. It is unclear whether it includes in Docket No. 13-1101, Citation 1, Items 11b 
and 14b, or in Docket No. 13-1102, Citation 1, Item 2b. On August 12, 2014, Complainant filed 
his Motion in Limine to Exclude the Testimony of Douglas Miller (Original Motion in Limine). 
Complainant sought to exclude Mr. Miller’s testimony at trial because it is not reliable and will 
not assist the trier of fact. 

 On August 29, 2014, Respondent timely filed its Opposition to Complainant’s Motion in 
Limine (Opposition to Original Motion in Limine). Among other substantive arguments, 
Respondent asserted that the Secretary filed his Original Motion in Limine without first consulted 
with Respondent about the motion and without including a certification with the Original Motion 
in Limine that Complainant had conferred with Respondent beforehand in violation of the 
Court’s Notice of Hearing and Scheduling Order. 

On September 10, 2014, the Court denied, without prejudice, the Secretary’s Original 
Motion in Limine because it was not accompanied by Complainant’s counsel’s certification that 
stated that: 1) the parties had discussed the matter, 2) there was or was not any objection to the 
motion, 3) the parties had made a good faith effort to settle the matter and had been unable to do 
so, and 4) the names of the parties who conferred or attempted to confer, the manner by which 
they communicated, the dispute at issue, as well as the dates, times, and results of their 
discussions, if any. The Order stated that Complainant may refile his Motion in Limine by 
September 25, 2014 provided it is accompanied by a certification that fully complies with the 
requirements set forth in the Court’s Scheduling Order, at pp. 3-4, n. 7. 

On September 15, 2014, the Secretary filed his Renewed Motion in Limine to Exclude the 


Testimony of Douglas Miller (Renewed Motion in Limine).2 The Secretary seeks an order 
excluding the testimony of Mr. Miller from testifying as an expert at the hearing. Complainant 
argues that Mr. Miller’s proposed testimony falls far short of satisfying the expert testimony 
requirements of Federal Rule of Evidence (Fed. R. Evid.) 702. He argues that Mr. Miller’s 
testimony is not reliable and will not assist the Court as the trier of fact. The Secretary further 
asserts that Mr. Miller is not qualified as an expert because his educational background is 
unclear, he has no specific expertise on the types of machinery involved in the case, and he has 
not previously qualified as an expert witness in a case before the Occupational Safety and Health 
Review Commission (Commission). The Secretary also argues that the proposed expert 
testimony invades the province of the Court and is more akin to closing argument. 

2 Complainant’s Renewed Motion in Limine included a Certificate of Conference certifying that the Secretary had 
conferred via telephone with Respondent regarding the Renewed Motion in Limine on September 15, 2014. 

3 In its Opposition to the Secretary’s Renewed Motion in Limine, Respondent asserts that Mr. Miller is “an expert in 
occupational safety as to safe practices, typical industry practices, or the practices at Respondent’s facility.” 
Opposition to Renewed Motion in Limine at p. 12. 

4 In its Cross-Motion, Respondent seeks, in the alternative, to exclude any opinion testimony of Compliance Officers 
Nick Donofrio and Kimberly Mielone regarding the alleged safety hazards because they have not been disclosed as 
experts in this case. The Cross-Motion is pending Complainant’s response which is due by October 9, 2014. This 
Order does not rule upon Respondent’s Cross-Motion, which will be ruled upon later by separate court order. 

On September 24, 2014, the parties filed their Joint Pre-Hearing Statement. In it, 
Respondent stated its intention to call Mr. Douglas Miller as an expert witness. Respondent 
indicated that Mr. Miler is expected to testify with regard to his expert report, including his 
inspections of the American Recycling & Manufacturing Co., Inc. (ARM) facility, and his 
observations and opinions including those identified within the Joint Pre-Hearing Statement, at 
pp. 8-10.3 

On September 25, 2014, Respondent filed its Memorandum of Law in Opposition to 
Complainant’s Motion in Limine and in Support of Cross-Motion.4 Respondent asserts that Mr. 


Miller qualifies as a safety expert and his testimony is reliable. Citing to Fed. R. Evid. 704, it 
also asserts that Mr. Miller should be allowed to testify as to ultimate issues of fact. Respondent 
further states that Mr. Miller’s testimony will assist the Court as the trier of fact. 

 The case is set for a hearing commencing on October 20, 2014. 

II. DISCUSSION 

Complainant asserts that Mr. Miller’s expert report does not comply with Fed. R. Evid. 
7025 and with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) because it 
“employs no scientific methodology” and will not assist the trier of fact.6 As advanced by 
Respondent, there is no dispositive requirement that a non-scientist expert use a particular 
scientific method to formulate the expert’s opinions. Kumho Tire Co., Ltd. v. Carmichael, 526 
U.S. 137 (1999). Experts may present expert testimony on a multitude of non-scientific topics. 
Id. at 150. Trial judges have great latitude to decide whether an expert’s testimony is reliable. 
Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 F.3d 120, 133 (2nd Cir. 
2006)[internal citations omitted]. Any such inadequacy regarding the absence of any scientific 
methodology can be addressed by voir dire at the hearing before Respondent offers Mr. Miller’s 
testimony or expert report into evidence, or by cross-examination. See Yankee Atomic Elec. Co. 
v. United States, No. 98-126C, 2004 WL 1535686 (Fed. Cl. June 28, 2004). Respondent asserts 

5 Fed.R.Evid. 702 provides: 

 

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 witness has reliably applied the 
principles and methods to the facts of the case. 

 

6 In Daubert, the Supreme Court used a four-prong test of reliability: 1) Has the methodology been subjected to a 
peer reviewed publication? 2) Is there a known or knowable error rate for the methodology? 3) Is the methodology 
generally accepted in the relevant scientific field? and 4) Has the methodology been tested or is it testable? 


that Mr. Miler’s report and expected testimony address factual issues that require technical 
expertise to understand; e.g. provide facts on how the equipment is operated and maintained. 
Here, the Court finds that Respondent has sufficiently demonstrated to the extent necessary to 
survive the Secretary’s Renewed Motion in Limine that Mr. Miller’s may have adequate 
technical, or other specialized knowledge, that may help the trier of fact to understand the 
evidence or to determine a fact in issue. 

 Complainant’s also asserts that Mr. Miller is unqualified as an expert because his 
educational background is unclear, he has no specific expertise on the types of machinery 
involved in the case, and he has not previously qualified as an expert witness in a case before the 
Commission. The standard of qualification for an expert witness is a liberal one. United States 
v. Parra, 402 F.3d 752 (7th Cir. 2005)(court should consider proposed expert’s full range of 
practical experience as well as academic or technical training when determining whether expert 
is qualified to render an opinion in a given area). Mr. Miller is an OSHA Compliance and Safety 
Consultant and President of Occupational Safety Consultants. During his career, he has worked 
as an auditor, project manager and trainer, addressing health and safety issues, developing written 
safety and health programs, and site-specific procedures. For the past fourteen years, he has 
taught for the Region II OSHA Education Centers, where he frequently trains OSHA inspectors. 
His clients included Exxon Mobil, DuPont, Xerox, Corning, #M, Siemens, a significant number 
of educational institutions, and many varied state and local government entities. His knowledge 
base includes machine guarding, safety compliance, employee safety, training, OSHA and ANSI, 
and Accident Investigation. His training accreditations include a Trainer Course in OSHA 
Standards for General Industry, Introduction to Industrial Hygiene, Machinery and Machine 


Guarding Standards, Electrical Standards, Hazards Recognition, Public Warehousing and 
Storage, Introduction to Machinery and Machine Safeguarding, and Introduction to Evacuation 
and Emergency Procedures. He has expert witness experience in matters relating to floor holes 
and amputation. He attended St. Bonaventure University. 

 The Commission normally accords wide latitude to administrative law judges in 
determining whether proffered expert testimony will be helpful to the Court. See Secretary of 
Labor v. United States Postal Service, 21 BNA OSHC 1767, 1775 (No. 04-0316, 2006). The 
Court finds that Respondent has presented information pertaining to Mr. Miller’s qualifications 
sufficient to justify the Court not granting the Secretary’s Renewed Motion in Limine at this time 
before the hearing. Such material shows that Mr. Miller may qualify at trial as an expert in 
subject matter areas pertinent to this case that are included within his expert report, e.g.; Machine 
guarding, industrial hygiene, uncovered floor holes, safe practices, typical industry practices, 
and/or the practices at Respondent’s facility. Experts in general industry who are not specialists 
in a particular discipline may, nonetheless, render expert testimony relating to general industry.7 
For example, experts in construction who are not specialists in a particular discipline such as soil 
composition and the operation of heavy earthmoving equipment on soil close to water may, 
nonetheless, render expert testimony relating to construction. See also Gaydar v. Sociedad 
Institute Gineco-Quirurgicon y Planificacion, 345 F.3d 15, 24 (1st Cir. 2003) (A “proffered 
expert physician need not be a specialist in a particular medical discipline to render expert 

7 The Secretary’s objections as to Mr. Miller’s qualifications and helpfulness to the Court, do not raise real Daubert 
or Kumho Tire reliability issues. In this instance, they go to weight, not admissibility. See Avcon, Inc., Vasilios 
Saites and Nicholas Saites, 2000 WL 14660990, at *29 (Nos. 98-775, 98-1168, O.S.H.R.C.A.L.J., Sep. 19, 2000) 
(expert testimony entitled to little weight where no specialized knowledge relevant to the case present); see also 
Taylor v. TECO Barge Line, Inc. et al., 2009 WL 1684420 at * 4 (W.D. Kentucky June 16, 2009) (questions 
regarding expert’s precise experience on various bodies of water are valid questions for cross-examination, but not 
determinative of expert status). 


 

8 Fed.R.Evid. 704 states in relevant part: “An opinion is not objectionable just because it embraces an ultimate 
issue.” 

testimony relating to that discipline.”). That the extent of Mr. Miller’s educational background is 
unclear at the moment or that he has not previously qualified as an expert witness in a case 
before the Commission is not by them sufficient to now justify a finding that Mr. Miller is 
unqualified to present expert testimony at this proceeding. For the above reasons, the Court 
defers until the hearing making a finding that Mr. Miller possesses sufficient qualifications 
through knowledge, skill, training or experience in particular subject matter areas of expertise 
that are pertinent to the facts of this case that will assist the Court to understand the evidence in 
this case. 

The Secretary further asserts that Mr. Miller’s testimony is inadmissible because it 
invades the province of the Court and he cannot tell the fact finder what conclusions to reach. 
Federal courts have found expert testimony on issues of law, either giving a legal conclusion or 
discussing the legal implications of evidence, to be inadmissible. See United States v. Bilzerian, 
926 F.2d 1285, 1294 (2d Cir. 1991). Fed. R. Evid. 704 was amended so as not to preclude expert 
testimony on the ultimate issue.8 Fed. R. Evid. 704, Advisory Committee Notes, 1972 Proposed 
Rules, reprinted in Thomson Reuters, Federal Civil Judicial Procedure and Rules at 468 (2014), 
states “The basic approach to opinions, lay and expert, in these rules is to admit them when 
helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt 
on the subject, the so-called “ultimate issue” rule is specifically abolished but the instant rule.” 
The amendment was not intended to allow an expert to advise the court on what outcome to 
reach. See United States v. Roper, 874 F.2d 782, 790 (11th Cir. 1989); Sparton Corporation v. 


United States, 77 Fed. Cl. 1, 8 (2007).9 

9 In Sparton, a law school professor’s testimony to serve the sole purpose of advising the Court on how to interpret 
the Armed Services Procurement Regulations (ASPR), contract provisions, and whether to apply the Christian 
doctrine to the facts of the case was excluded because such legal conclusions were found to be within the province of 
the Court. Sparton Corporation v. United States, 77 Fed. Cl. at 8. Such is not the case here. 

 Respondent is also not entitled to present its legal arguments from the witness stand in 
the guise of expert testimony. While patent law experts have occasionally been used in bench 
trials to inform the judge on the intricacies of patent law, “[a]n expert's opinion on the ultimate 
legal issue is neither required nor indeed ‘evidence’ at all.” Mendenhall v. Cedarapids, Inc., 5 
F.3d 1557, 1574 & n. 17 (Fed.Cir.1993) (quoting Nutrition 21 v. United States, 930 F.2d 867, 
871 n. 2 (Fed.Cir.1991)). 

Respondent asserts that Mr. Miller “uses his observations at the scene, his review of the 
file and his knowledge as an expert to come to conclusions as an expert in occupational safety as 
to safe practices, typical industry practices, or the practices at Respondent’s facility.” The Fifth 
Circuit has determined that “industry custom and practice will generally establish the conduct of 
the reasonably prudent employer….” See Cotter & Co. v. OSHRC, 598 F.2d 911, 913 (5th Cir. 
1979); but cf. Secretary of Labor v. Bratton Corp., 14 BNA OSHC 1893, 1898 (No. 83-132, 
1990)(No federal circuit court other than the Fifth Circuit has found evidence of industry custom 
to be dispositive). Commission and other circuits apply a test as to what a reasonable person 
familiar with the circumstances surrounding the cited condition and with industry practice would 
have done)(emphasis added). Accordingly, Respondent may offer expert testimony by Mr. 
Miller regarding industry custom and practice to the extent that he is found by the Court to be 
qualified in that particular subject matter area of expertise and the industry custom is relevant.10 

Here, Respondent assets that Mr. Miller “never concludes whether or not a specific 


10 See e.g.; Summary of Opinion, Docket No. 13-1101, Citation 1, Item 10, at Opposition to Renewed Motion in 
Limine, at p. 13. 

11 Though an expert’s opinion may be admissible at trial, the admissibility of the expert’s opinion does not equate 
with its utility in satisfying a party’s burden of proof. See In re Lake States Commodities, 272 B.R. 233, 243 (N.D. 

regulation is violated” and “does not make legal opinions.” Accordingly, Mr. Miller may present 
testimony on the ultimate issues in this case to the extent that he may not tell the Court what 
conclusion to reach.11 

 This case will be handled by a bench trial. There is no concern with protecting a jury 
from “being bamboozled by technical evidence of dubious merit.” American Home Assurance 
Company v. Masters’ Ships Management S.A. et al., No. 03 Civ. 0618(JFK), 2005 WL 159592, 
at *1 (S.D.N.Y. Jan. 25, 2005), SmithKline Beecham Corp. v. Apotex Corp., 247 F.Supp.2d 1011, 
1042 (N.D.Ill.2003). Whereas, in a jury trial, expert testimony on the law may be excluded in 
part to prevent jury confusion, the primary reason for exclusion of such testimony in a bench trial 
is that it invades the province of the court and is not helpful. Marx Co., Inc. v. Diners’ Club Inc., 
550 F.2d 505, 509-10 (2nd Cir. 1977). In the context of a non-jury trial, the Court may allow 
challenged expert testimony to be presented at trial and then later determine issues of 
admissibility and reliability. See N.W.B. Imports and Experts, Inc. v. Eiras, No. 3:03-cv-1071-J-
32-MMH, 2005 WL 5960920, at *1 & n.2 (M.D. Fl. March 22, 2005). The fact that this is a 
bench trial weighs heavily in favor of denying without prejudice the Secretary’s Renewed Motion 
in Limine and addressing the issues raised therein if and when they come up at trial. See Lifetime 
Homes, Inc. v. Residential Development Corp., 510 F. Supp.2d 794, 811 (M.D. Fl. 2007). 

Furthermore, “vigorous cross-examination” and “presentation of contrary evidence” are 
among the means for “attacking shaky, but admissible evidence.” Daubert v. Merrill Dow 
Pharmaceuticals, Inc., 509 U.S. at 596. 


Ill., Jan. 11, 2002). 

III. CONCLUSION 

It cannot be said at this stage that Mr. Miller lacks specialized knowledge, skill, or 
experience related to the matters about which he intends to offer expert testimony in this case or 
to make a finding that his methodology is flawed. 

For all of the above foregoing reasons, Complainant’s Renewed Motion in Limine is 
found by the Court to be without merit at this time. 

IV. ORDER 

WHEREFORE IT IS ORDERED THAT the Complainant’s Renewed Motion in Limine 
is DENIED, without prejudice to further renewal by objection during the trial for the matters 
raised herein. 

SO ORDERED. 

 

 

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

 

Dated: 10/1/2014 

 Washington, D.C.