UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

May 14, 1992

ORDER GRANTING PETITION FOR INTERLOCUTORY REVIEW AND REMAND

On April 15, 1992, Respondent filed a Petition for Interlocutory Review, taking exception to the ruling by Review Commission Administrative Law Judge Paul L. Brady, in his order dated April 8, 1992, denying Respondent’s motion to reopen the record to include certain testimony of Respondent’s expert witness and the report of the expert. The judge had earlier, at the hearing, denied admission of that offered evidence. We find that this issue of admissibility meets the requirements of Commission Rule 73(a), 29 C.F.R. § 2200.73(a), because it is “an important question of law ... about which there is substantial ground for difference of opinion and ... immediate review of the ruling may materially expedite the final disposition of the proceedings.” For the reasons that follow, we grant the petition and remand this case to the judge for further proceedings consistent with this order.

The Secretary issued a citation to Respondent for failure to adequately slope or otherwise support the walls of a trench in violation of 29 C.F.R. § 1926.652. In its defense, Respondent offered the testimony of its expert witness, geotechnical consultant Francis Krieger, who it had hired to re-excavate the trench that had been filled subsequent to the inspection. Sustaining the Secretary’s objection, the judge precluded Respondent’s expert from testifying about certain aspects of the re-excavated trench and precluded Respondent from entering into evidence the expert’s written report. Approximately three months after the hearing, which was held in December 1991, Respondent filed a motion to reopen the record which the judge considered and denied by his order dated April 8, 1992. Pursuant to Commission Rule 73(b), 29 C.F.R. § 2200.73(b), Respondent filed its Petition for Interlocutory Review “[ ]within five days following the receipt of a Judge’s ruling from which review is sought.”1

In his order denying Respondent’s motion to reopen the record, the judge gave as a reason for not admitting the expert’s complete testimony and his report that they are “not deemed relevant to resolving the issues presented.” After noting that the re-excavation “was performed without notice to the Secretary,” he stated that, even if the report were relevant, it would be excluded under Rule 403 of the Federal Rules of Evidence. That Rule provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, ... consideration of undue delay, waste of time, or needless presentation of cumulative evidence.”

The expert’s testimony concerning the conditions at the re-excavated trench and his report thereon are relevant to the alleged violation under Rules 401 and 402 of the Federal Rules of Evidence. See, e.g., Concrete Construction Co., No. 89–2019, slip op. at 12 (May 14, 1992). Although, as the judge indicates, the Secretary may not have had notice of the re-excavation, that reason alone does not appear to constitute unfair prejudice, or any other basis for excluding the report under Rule 403. Relevant portions of the transcript, submitted to the Commission by Respondent with its Petition and by the Secretary with her Opposition to the Petition, indicate that the judge’s main concern with the expert testimony and report was their unreliability. He therefore improperly equated reliability with admissibility. See Regina Construction Co., 15 BNA OSHC 1044, 1048, 1991 CCH OSHD ¶ 29,354, p. 39,468 (No. 87–1309, 1991). Once admitted, the evidence can be accorded whatever weight is deemed appropriate. It would then be balanced against all other evidence when deciding the issue of whether Respondent was in compliance with the cited standard.

Accordingly, we order this case remanded to the judge for further proceedings, including the reopening of the record to permit Respondent’s expert to testify fully about relevant conditions at the re-excavated trench, and the admission into evidence of the expert’s engineering report.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

May 14, 1992

1 The “ruling from which review is sought” here is the judge’s denial of Respondent’s motion to reopen the record. If the judge had found that the motion was duplicative and the issue had been adequately addressed from the bench at the hearing, then, as the Secretary contends in her Opposition to the Petition, it would be arguable that Respondent’s Petition would be untimely because the “ruling” would have been made at the hearing. However, by specifically ruling on the motion to reopen in his April 8 order and providing support therefor, the judge demonstrated that he had reconsidered the issue.