Mining Expert Witnesses – 8 Tips to Maximize Value


Mining Expert WitnessThe mining industry in the United States is one that shares a historical connection with those who work within it and remains a staple part of surrounding local communities where they are located. Though mostly concentrated in specific regional sites across the country, mining-related accidents can lead to complex lawsuits in this multi-faceted industry that may require the retention of multiple mining expert witnesses.

In the litigation context, there are two common scenarios in which a mining expert witness would be sought. The first instance is one in which an MSHA inspector issues a mine operator a citation, and a mining expert witness is needed to contest that inspector’s findings in an administrative proceeding to dispute the citation and penalty fine. The other instance is where a worker is severely injured and seeks recovery for the damages. In both scenarios, the expert’s testimony is what brings to life the materiality of the facts and gives merit to the advocate’s argument. We interviewed a number of different experts and attorneys in this specific practice area to note a few steps of key importance when litigating in a mining-related accident case:

1) Mind Your Miners

The mining industry is heavily regulated by the government, which is why litigation in this context is so unique. Industry standards for the safe-handling, operation and maintenance of mines are prescribed in the Mine Safety and Health Act and codified as law under Title 30 of the United States Code. See 30 USC § 801. “Congress declares that (a) the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource–the miner[.]” 30 USC § 801(a).

The mining industry in the United States is one that shares a historical connection with those who work within it and remains a staple part of surrounding local communities where they are located. Expert Gary Buffington explained that the Federal Mine Safety & Health Act of 1977 moved the then newly named Mine Safety and Health Administration to operate under the auspices of the Department of Labor. The significance of that change is that the violation of these mandatory regulations imposed the risk of both criminal and civil penalties. Meaning that mine operators can face criminal charges and even incarceration.

2) Define Your Battle Grounds

The most important first step in these kinds of cases is to organize your causes of action into the appropriate categories. As attorney David Duffield puts it, you must “define your battleground.” In essence, you are making an efficient roadmap to direct you towards the kinds of experts you may need and where to find them. Mr. Duffield explains “there is almost never just 1 expert in these types of cases, in most instances you would need a team. And you put together your team by first identifying what kind of injury or incident you are dealing with and how that injury came about. For example, in a case involving dust-inhalation, I narrowed my area of focus to issues of “overcast” (mining principle concerning the spreading of ventilation) so I knew to look for 1) a “rock-dust” expert;  2) an engineering expert; and 3) a damages expert, just to start.”  

In such a complex and highly-regulated industry such as mining there are an incredible number of moving parts. All these components deserve independent consideration in the context of litigation. Mr. Duffield further explained that almost all litigation in this area requires both liabilities experts and damages experts. The distinction between the two, at least with respect to the mining industry, is key. A liabilities expert is necessary for analysis of which entities are accountable or at fault, under the umbrella of all regulations or statutes that may be controlling. Liabilities experts are well-versed in the area of contracts especially in this field because many mine operators hire contractors, who then hire sub-contractors, who in turn hire day-laborers, muddying any clear avenues of accountability.

“According to the mining laws and standards, mines can fall under the description of multi-employer workplaces” mining safety expert Gary Buffington succinctly explains. This is a critical component and a great mining expert witness will have a handle on this from the outset. You can’t bring suit against someone who’s not legally liable. A damages expert, such as a medical doctor for example, would attest to the substantive harm suffered by the individual (i.e. paralysis, loss of motor functions, PTSD). Experts are expensive, and that is an economic reality of litigation. So figuring out what kind of “team” you may need is most prudent for both you and your client.

3) The World of Damages

When an accident occurs in the mining industry, the injuries are often severe and even fatal. This is what sets litigation in this field apart from other garden variety tort cases. Because of the complicated nature of litigation in this field, it’s important to be aware of all the various analyses that may be necessary when calculating damages arising out of a mining accident.

West Virginia Attorney Tim Bailey, who specializes in coal mining accident cases, shed some light on the more unique types of damages experts used in mining accident cases. “In some instances you may need to bring in an economist and/or a life-care planner, depending on the severity of the injury. Let’s say for example a 30-year-old miner was injured on the job and was maimed. You would seek an economist to calculate the financial damages suffered from loss of wages as measured in terms of ‘present dollar value’. You would then want a life-care planner to assess the projected future cost of living with the injury. This means taking into account the cost of every wheelchair, caretaker, bedpan, physical therapy session etc. over the individual’s lifetime.”

Mr. Bailey explained that there are also vocational experts used in these cases, experts who can testify to the individual’s loss of ability to work in other comparable trades. Although of course there is often overlap between these types of damages experts, they are in fact distinct and are utilized for specific purposes. It’s extremely important to understand their areas of focus to find an expert witness that’s a “good fit” for your clients’ best interests.  

4) Learn From Your Expert Witness

As is often the case, attorneys become well-versed in the subject matter of an expert’s testimony. Although, it is easy to gloss over the aspects of an expert’s testimony that incorporate basic common law within the context of governing statutory or regulatory schemes. For example, application of the concept of “due care” or “negligence” in a mining accident case.

However, in this type of litigation, the importance of learning from your expert cannot be overemphasized. This is because, unlike other industries and thus litigation arising within it, the material is remarkably technical. Take advantage of the opportunity to learn the language of the industry to solidify your understanding of the application and dynamic interplay of standards in operation. What great experts have in this field is personal experience. This is a great resource to utilize in terms of information gathering. All of the experts consulted in this article have themselves worked in the mining industry for many years.

Consequently, mining expert witnesses know what to look for and where to look for it. When mine operators receive citations for example, this kind of disciplinary history can be found on MSHA’s online database. A knowledgeable expert/attorney team would have investigated any such history for purposes of litigation. “This could be immensely helpful in a case where for example an operator has a history of multiple citations for something like ‘unwantable failures’” says Mr. Bailey. Additionally, a good expert will have visited the mine facility at issue.

When asked if this was an important part of the expert’s knowledge, Mr. Buffington replied “if the mine in question is still in existence, I generally will not take the case unless I can visit the mine. I was retained in one case that went all the way to the [state] Supreme Court – the fact that I visited the mine helped strengthen my opinion and therefore secure a win.” He further explained however that in some cases of mine explosions, it is not possible to visit the mine, nonetheless an expert should be as familiar as possible with the site about which he or she is to testify.

5)  Know the Nuances in the Law

Whether in an administrative proceeding or a civil litigation context, MSHA safety expert Peter Zagar notes that “not only do mining expert witnesses need to know the codified standards extremely well, they need to also be familiar with how the legal and administrative interpretations have ‘played out in the past’.” This means that a good expert should keep track of the trends that similar cases have followed. Mr. Zagar continues that “since the standards are black and white in nothing but their written form, good experts should know the ‘spirit of the law’.”

When asked how an expert can do this without having the same access to legal materials as an attorney, Mr. Zagar says that there are multiple ways to keep up with changes in interpretations of the law. For example, MSHA promulgates its own interpretation of legislative regulatory provisions, which can be found on its regularly updated website. There also exists a “field manual” for respective mining operations in which legal trends are incorporated. MSHA uses these field manuals to be instructive to their own experts. However Mr. Zagar also cautions that an expert has to be diligent in keeping up with this kind of information. Especially for instances where cases are settled out of court and relevant substantive information is not accessible. In these instances there are other resources, such as certain trade associations that attempt to stay well informed about cases that are often settled out of court.

In the same vein, expert Bruce D. Groves posits that the best attorney/expert team is one where the attorney is already familiar with the subtleties of the law in this area, prior to retaining the expert. With effective communication between the attorney and expert, and a thorough exchange of new information, there can be a balanced mixture of technical knowledge and proper legal framing.

Attorneys and experts have different valuable skillsets, and in the world of mining-related litigation, communication between them is key for the best preparation. For example, an expert may not be completely familiar with which states allow for additional punitive damages. However an attorney would be aware of this and use the expert’s testimony to best advocate for this aspect of a damages claim. Mr. Bailey points out that many states have dual set of laws in place with respect to mining standards, one set being the governing federal MSHA standards and the other set being that of the state’s.

In some instances, the state laws may even be narrower or stricter than the federal law. So it is extremely important for both expert and attorney to finely comb through any differences between the two that could be of consequence. More than one expert will tell you what he or she knows, “a good expert will tell you what they don’t know” says Mr. Groves. In an industry where there is so much specialization, a good expert will be able to pinpoint any areas in which he may not have the most expertise. Furthermore, he can point you in the right direction of a better suited expert. For litigation in this field, expertise in various disciplines may be required. However its still under the large umbrella of a unique industry.

Accordingly, as attorney Tim Bailey suggests, a basic internet search may not always be the best starting point. Attorneys Mr. Bailey and Mr. Duffield both claim that their first step is to consult with other colleagues in the field and use this as a starting point in their search for the perfect team of witnesses. As the mining industry is unique, litigation in mining is correspondingly unique as well. So conferring with others who have the experience is a good way to easily access a valuable resource- the network of other mining-accident attorneys.

6) Administrative Proceedings

Since this industry is heavily regulated, what commonly occurs is that a mine operator will receive a citation for violating a provision of the MSHA standards. When the mine operator wishes to contest the issuance of citation, a proceeding is held in front of an administrative law judge (an ALJ) and outside the presence of the jury. In this scenario, the interest parties are the mine operator and the government, vis-à-vis the Mine Safety and Health Administration. It is here that an “MSHA expert witness” would be utilized to contest the findings of an inspector who issued a citation. However, it cannot be an expert currently employed with MSHA and thus one would seek a retired MSHA expert witness. In the context of outside civil litigation where safety standards are implicated, one would still seek a retired MSHA expert or retired safety inspector.

Mine operation and safety expert Scott McKenna insists that “the single most important thing that an MSHA expert needs to do is to read and know the regulations, inside and out. This is because things in this industry turn on words and clauses in regulations, in other words, the devil is in the details.”. For example, the specifications for rigging structures, amount of space between walls and equipment fixtures etc. are just a few of the factors governed by these regulations.

Something interesting that we learned from Mr. McKenna is that an MSHA inspector can change the standard under which they issued a citation at any time throughout a proceeding, from the moment it was issued. “This means that, let’s say an inspector issued a citation under a fire hazard provision- at any time between that citation and the proceeding or even during, the inspector can simply change the standard to falling hazard, or anything else.”

Mr. McKenna urges the importance of an expert to be prepared for this as it commonly occurs, especially in the paperwork phase. However expert Peter Zagar also notes that in many instances, experts and safety inspectors often “litigate in the field,” at the time and place the citation is issued. Describing it almost as a negotiation over the price of the fine, Mr. Zagar explained that in many instances, contesting the citation does not rise to the level of an administrative proceeding.

In the event that it does however, expert Gary Buffington explained that he prepares differently for testimony in front of an ALJ as opposed to a jury. “Speaking from my experience, if I am testifying in front of an ALJ, I will research the ALJ in depth to determine how experienced he or she is; for example, are they experienced in metal or nonmetal mining operations?

“I also advise that experts never give the judges an appearance of ‘talking down’ to them, these are educated professionals with much exposure to the mining industry and should be treated as such. However when I’m in front of a jury, I do not get overly technical. In my experience, there are always 2 or 3 individuals on the panel that will really understand what you’re saying and I advise that you focus on these jurors because they can convey your information to the others.”

The best way that expert Peter Zagar prepares for testimony is essentially to write a “brief” (something like one an attorney might write). Such a brief contains structured technical arguments within the legal or administrative framework and 1-2 paragraphs about how and why the MSHA inspector improperly issued a citation or erroneously interpreted a standard/regulation.

7) Teaching Over Talking

Regardless of their particular specializations, any good expert in this type of litigation should be able to explain the basics of the industry to the jury. More importantly, they should ultimately connect their topic of testimony to the relevant industry standards or the damages at issue. When asked about how to break down what could be such a complicated cause of action to a fact-finder, attorney David Duffield put it simply- “you start with common sense. Maybe good folks don’t necessarily come in understanding MSHA standards and rigging protocols, but they do understand that mines aren’t supposed to explode.”

When asked whether there was a preference for experts with more knowledge in science or with the nuances in MSHA regulations and adjudicatory proceedings, expert Gary Buffington says “You really need both experts. You need to understand the mining process and different hazards that go along with them. You also need to know the industry regulations and be able to apply the intent of regulations to the specific incident.”. Although there isn’t any “winning” strategic order in which to present the experts and their testimonies attorney Tim Bailey suggests calling the expert who will both connect with the jury, i.e. one who is more personable and who will explain the industry standards in way that will best set the stage for your legal arguments.

8) Technology is Your Friend

Now more than ever, technology is utilized in litigation and most often to aid the jury or trier of fact in making sense of a witness’ testimony or relevant background information. This is especially true in this sphere since the subject of testimony is foreign to most jurors. It can also involve complex technical language, standards and scientific explanations. Tim Bailey explained that although computer generated animations and other digital media presentations can be very expensive (often more expensive than the expert whose testimony it is designed to support!), they are extremely helpful by enabling the trier of fact to visualize material events along with the expert’s testimony.

It makes sense that computer generated animations are so valuable especially in mining related litigations. This is because the very nature of mining (and subsequently trying to explain a mining-related accident) involves an environment to which those outside the mining industry are rarely exposed. Whether it concerns surface or subsurface, metal or nonmetal, coal or minerals, the common denominator is that it is a vast unfamiliar topic area. Different aspects of this will have to be explained by several different experts. “Think for example, in an engineering safety case involving a subsurface mine– people can’t picture what’s underground if they have never seen it before.” Technology to aid your expert’s testimony is valuable when trying to capture or demonstrate details such as these” says David Duffield.

Conclusion

The mining industry is rather iconic in terms of American history and continues to play a significant role in the lives of those who live in mining communities across the country. Despite the various kinds of mines and mine facilities, it is an industry that is somewhat close-knit. It is because of the high-risk nature of a miner’s job that Congress saw fit to implement a federal regulatory framework to govern all mining operations nationwide.

In the event that a failure to observe these procedural safeguards results in a citation or worse, severe injury to a worker, and subsequently a legal suit, experts will be sought to testify on potentially several different matters. Geology, physics, engineering, and medicine are just a few examples of the kinds of experts used in these types of cases. It is important to bear in mind the qualities of this highly regulated industry that make it and litigation arising within it equally unique.

A good expert will be able to first and foremost demonstrate familiarity with the industry standards, as well as interpretations within the legal or administrative frameworks. A well-informed expert who thoroughly communicates and exchanges information with the attorney is in a good position to later engage a jury or the fact-finder. However one of the more important steps is to first identify what kind of case the client is involved in to make best use of time and resources and ultimately find the right kind of expert for your client’s case.

About The Author

Mehjabeen Rahman, J.D., is an associate litigator specializing in property and tenant proceedings, debt recovery, bankruptcy, Supreme Court matters, and hearings in Administrative tribunals.