Safety report admissible, 4th Circuit says

The family of a Dickenson County coal miner killed in a 2003 mining accident will get another chance to prove their products liability claims against the manufacturers of a mining machine’s remote control device that was strapped to the miner’s body.

On March 12, the 4th U.S. Circuit Court of Appeals reversed Judge Jim Jones’ grant of summary judgment to the defendants in Kennedy v. Joy Technologies Inc.

Miner Gregory Kennedy was fatally crushed by a continuous mining machine. On appeal, his widow Mollie argued for the estate that the district court should not have excluded from the evidence a portion of the accident investigation report made by the federal Mine Safety and Health Administration, as well as opinions of the plaintiff’s causation experts.

The MSHA report concluded that the most likely explanation for continued operation of the mining machine that fatally pinned Kennedy was “a build up of debris in the left side track operating lever’s socket.”

After the parties tussled over experts at a motions hearing, the defendants apparently got an unexpected bonus when the district judge – sua sponte – excluded the MSHA report’s conclusion and then granted summary judgment to the defendants.

In its unpublished opinion reversing exclusion of the government report, the 4th Circuit said that it was clear from the record that the defendants “had not contemplated the possibility that the MSHA Report’s conclusions might be deemed inadmissible.”

The Big Stone Gap district court abused its discretion by failing to apply a public-record presumption of admissibility to the MSHA report under Fed. R. Evid. 803(8)(C), or to find factors that undermined the report’s reliability, according to the appellate panel.

The panel upheld exclusion of the causation expert’s opinion, saying the expert’s report merely summarized the existing evidence, without providing any specialized analysis.

Experts’ reports

A discovery ruling in a black lung case may have ramifications for protecting work-product and confidential communications in other kinds of litigation.

Elm Grove Coal Company was trying to overturn black lung benefits awarded to a retired miner named Ivan Blake. The two physician experts who supported Blake’s claim admitted that Blake’s lawyer might have had something to do with the substance of their factual reports.

That being the case, Elm Grove may have a right to get a copy of draft reports and communications between Blake’s lawyers and the experts, according to the 4th Circuit in Elm Grove Coal v. Director, OWCP. The mine actually was trying to get at the “trustworthiness and reliability” of the doctor experts, the panel wrote, so the reports and communications were fair game. But the court said the situation might be different when it comes to consulting experts, as opposed to testifying experts.