Film Allman, LLC

Plain-English summary

Film Allman directed twenty to twenty-three employees to film a movie scene on an active railroad trestle. The company knew the railroad had twice denied permission, had no railroad representative controlling train traffic, and did not create a workable emergency exit plan. When a train approached, employees tried to clear equipment and move off the trestle; a second camera assistant was killed and several other crew members were injured. The judge also found unguarded and inadequately guarded trestle edges exposed employees to falls into the river. The fall-protection items were affirmed as serious, and the train-strike hazard was affirmed as willful because management consciously disregarded the known danger. Penalties totaled $74,900.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(c)(1); 29 C.F.R. § 1910.23(e)(1); 29 U.S.C. § 654(a)(1)
• Outcome: Two serious fall-protection items and one willful train-strike hazard item affirmed; $74,900 total penalty assessed.
• Key point: Directing employees onto active railroad tracks after permission was denied, without traffic control or an emergency plan, establishes plain indifference to employee safety.

Full text (OSHRC public release)

                    Some personal identifiers have been redacted for privacy purposes
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1924 Building - Room 2R90, 100 Alabama Street, SW
                                    Atlanta, Georgia 30303-3104
                                   [email protected]

Secretary of Labor,
Complainant,

           v.                                             OSHRC Docket No. 14-1385

Film Allman, LLC.,
Respondent.

Appearances:
Karen Mock and Monica Moukalif, Esquire, U.S. Department of Labor, Atlanta, Georgia
For the Complainant

    Amanda R. Clark Palmer, Donald F. Samuel, and Edward T. Garland, Esquire,
          Garland, Samuel and Loeb, PC, Atlanta, Georgia
          For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                 DECISION AND ORDER

   In 2013 Randall Miller and Jody Savin formed Film Allman, LLC, for the purpose of

filming a movie called Midnight Rider: The Gregg Allman Story, based on Gregg Allman’s
2012 autobiography My Cross to Bear (Exh. J-1, Stipulated Facts, ¶ 1; Exh. C-25, pp. 24-25; Tr.
1017, 1021). Film Allman planned to film in and around Savannah, Georgia, in February and
March of 2014 (Schwartz deposition, pp. 22; Tr. 1070). On February 20, 2014, a number of
Film Allman’s employees arrived at the Doctortown train trestle, which spans the Altamaha
River near Jesup, Georgia, to film a scene on the trestle. The scene was a dream sequence which
called for the character of Gregg Allman to wake up in a hospital bed placed across the railroad
tracks of the trestle (Exh. J-1, Stipulated Facts, ¶¶ 32, 55; Exh. J-3; Exh. C-32). At
approximately 4:30 p.m., while twenty to twenty-three Film Allman employees were located on
the trestle approximately 100 feet from the southern bank of the river, the employees realized a
northbound train was approaching. The employees on the trestle hurriedly gathered the
equipment they had carried with them and moved toward the oncoming train because that was
the fastest way to exit the trestle. Several employees attempted to move the hospital bed off the
tracks, but it came apart when they picked it up. Some of the bed parts were still on the tracks
when the train hurtled across the trestle. Film Allman’s Second Camera Assistant, twenty-seven
year old [redacted], was killed by the train as it passed and several other crew members were
injured, some seriously (Exh. J-1, Stipulated Facts, ¶¶ 57-61; Tr. 746).
John Vos, a compliance safety and health officer (CSHO) for the Occupational Safety
and Health Administration (OSHA), conducted a fatality investigation of the accident from
February 21 to August 4, 2014 (Tr. 708). Based on CSHO Vos’s investigation, the Secretary
issued a Citation and Notification of Penalty to Film Allman on August 14, 2014. Items 1a and
1b of Citation No. 1 allege Film Allman committed serious violations of 29 C.F.R. §§
1910.23(c)(1) and (e)(1), respectively, by failing to adequately guard the west and east sides of
the Doctortown trestle, exposing employees to fall hazards. The Secretary proposes a grouped
penalty of $ 4,900.00 for Items 1a and 1b of Citation No. 1.
Item 1 of Citation No. 2 alleges Film Allman committed a willful violation of § 5(a)(1) of
the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act), by failing to
implement safety procedures for filming on the trestle, exposing employees to the hazard of
being struck by a train. The Secretary proposes a penalty of $ 70,000.00 for Item 1 of Citation
No. 2.
Film Allman timely contested the Citation. The Court held a four day hearing in this
matter in Savannah, Georgia, from March 31 to April 3, 2015. The Court did not close the
record in this proceeding on April 3 but left it open for receipt of two trial depositions, taken on
April 27 and 28, 2015. The Court received transcripts and videos of the depositions in early May
and subsequently made evidentiary rulings on various objections made by the parties’ counsel to
the testimony and documents offered into evidence during the depositions. The Court closed the
record of this proceeding on May 15, 2015. The parties filed simultaneous post-hearing briefs on
July 14, 2015. Film Allman stipulates to most of the elements of the Secretary’s burden of proof
for the cited items but argues the classifications and penalties of the alleged violations should be
reduced.
For the reasons that follow, the Court AFFIRMS Items 1a and 1b of Citation No. 1 and
assesses a grouped penalty of $ 4,900.00. The Court also AFFIRMS Item 1 of Citation No. 2
and assesses a penalty of $ 70,000.00.
 Jurisdiction and Coverage
The parties stipulate the Commission has jurisdiction over this action and Film Allman is
a covered business under the Act (Exh. J-2, Stipulated Points of Law, ¶¶ 1-2). Based on the
parties’ stipulations and the record evidence, the Court finds the Commission has jurisdiction
over this proceeding under § 10(c) of the Act and Film Allman is a covered business under § 3(5)
of the Act.
PRELIMINARY ISSUES
Subpoena Service
On March 12, 2015, the Secretary issued subpoenas to First Assistant Director Hillary
Schwartz and Unit Production Manager Jay Sedrish, both California residents, to appear as
witnesses at the hearing held in this proceeding in Savannah, Georgia. On March 24, Schwartz
filed a motion to quash or revoke the subpoena on the grounds she resides more than 100 miles
from the hearing site and the Secretary failed to tender mileage and fees at the time of service,
citing Fed. R. Civ. P. 45(b)(1) and (c)(1)(A). (Sedrish did not file a motion to quash the
subpoena served on him.) Schwartz also argued,
Hillary is serving a term of probation [for conviction of criminal trespass and
involuntary manslaughter] which expressly forbids her from leaving the State of
California without express, specific, written approval from the probation
department. Furthermore, at this stage Hillary has not been assigned a probation
officer and is not clear when such assignment will be made and/or when a
probation officer will be assigned.
(Motion to Quash and/or Revoke Subpoena, ¶ 15)
The Court found no merit in Schwartz’s arguments regarding geographical limits or
tendering of mileage and fees, but agreed her representation regarding the terms of her probation
warranted a modification of the subpoena. Following a conference call with the parties on
March 30, 2015, the Court issued an order on March 31 stating, “[I]n accordance with the
agreement reached during the conference call, Ms. Schwartz will testify by Trial Deposition,
which is to be taken and submitted to the Court by April 30. The record will be left open.”
(Order Partially Granting Motion to Quash, p. 2)
At the hearing, Film Allman objected to the Court’s order permitting the Secretary to take
the trial depositions of Schwartz and Sedrish.
We respectfully disagree with the Court's ruling that the 100 mile limit is
inapplicable. . . . Commission's rules don't address that issue; and consequently,
we believed and continue to believe that the 100 mile limit required by the
 Federal Rules of Civil Procedure does apply. And so we object to any depositions
that are being taken after this hearing is over. Those parties both, as I understand
it, either objected or didn’t respond to a subpoena, believing that it was
inapplicable.
(Tr. 14-15) The Court overruled Film Allman’s objection and instructed the parties to proceed
with the trial depositions after the hearing (Tr. 18).
The parties conducted trial depositions of Schwartz and Sedrish subsequent to the
hearing. Although Film Allman does not renew its objection to taking the depositions in its post-
hearing brief, for the purpose of clarification the Court will more fully address the objection
raised at the hearing.
Commission Rule 2, 29 C.F.R. § 2200.2, provides:
(a) Scope. These rules shall govern all proceedings before the Commission and its
Judges.
(b) Applicability of Federal Rules of Civil Procedure. In the absence of a specific
provision, procedure shall be in accordance with the Federal Rules of Civil
Procedure.
The Commission Rules of Procedure have a specific provision governing service of
subpoenas. Commission Rule 57(b), 29 C.F.R § 2200.57(b), provides:

   (b) Service of Subpoenas. A subpoena may be served by any person who is not a
   party and is not less than 18 years of age. Service of a subpoena upon a person
   named therein may be made by service on the person named, by certified mail
   return receipt requested, or by leaving a copy at the person's principal place of
   business or at the person's residence with some person of suitable age and
   discretion residing therein.
   The language of Commission Rule 57(b) is analogous to the language of Fed. R. Civ. P.

45(b)(1) except the Commission Rule omits any reference to fees and mileage. Fed. R. Civ. P.
45(b)(1) states,
Any person who is at least 18 years old and not a party may serve a subpoena.
Serving a subpoena requires delivering a copy to the named person and, if the
subpoena requires that person's attendance, tendering the fees for 1 day's
attendance and the mileage allowed by law. Fees and mileage need not be
tendered when the subpoena issues on behalf of the United States or any of its
officers or agencies.
Schwartz and Film Allman apparently overlooked the last sentence of Fed. R. Civ. P.
45(b)(1) when arguing the Secretary’s subpoena was ineffective because the Secretary did not
tender fees and mileage to Schwartz at the time he served the subpoena. Even under the Federal
Rules, “when the subpoena issues on behalf of the United States or any of its officers or
agencies,” tendering of fees and mileage is not required.
The Commission Rules are silent on the issue of geographical limits. Film Allman
concludes from this silence that Fed. R. Civ. P. 45(c)(1)(A) must necessarily apply. Fed. R. Civ.
P. 45(c)(1)(A) states,
(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to
attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where a person resides, is employed, or regularly
transacts business in person[.]
Contrary to Film Allman’s interpretation, the Court concludes from the silence of
Commission Rule 57(b) regarding geographical limits that it imposes no such limitation on
service. The language of the Act supports this interpretation. Section 12(i) of the Act provides,
“For the purposes of any proceeding before the Commission, the provisions of section 11 of the
National Labor Relations Act (29 U.S.C. 161) are hereby made applicable to the jurisdiction and
powers of the Commission.” Section 11 of the National Labor Relations Act authorizes
subpoena power to the National Labor Relations Board and mandates that attendance of
witnesses and production of evidence “may be required from any place in the United States or
any Territory or possession thereof, at any designated place of hearing.”
Furthermore, the Advisory Committee Notes to Fed. R. Civ. P. 45(c)(1)(A) state the 100-
mile limitation “does not apply to the enforcement of subpoenas issued by administrative officers
and commissions pursuant to statutory authority. . . . Many of these statutes do not place any
territorial limits on the validity of subpoenas so issued, but provide that they may be served
anywhere within the United States. Among such statutes are . . . U.S.C., Title 29, § 161 (Labor
Relations Board) [and] U.S.C., Title 41, § 6507 (Secretary of Labor).” (Fed. R. Civ. P. 45,
Advisory Committee Notes, 1937 Adoption) (emphasis added)
Based on the statutory authority of § 11 of the National Labor Relations Act, which
applies to the jurisdiction and powers of the Commission as authorized by §12(i) of the Act, the
Commission is empowered to issue subpoenas anywhere within the United States. The
subpoenas issued to Hillary Schwartz and Jay Sedrish, both for attendance at the Savannah
hearing and at the California depositions, were properly served.
 Witness Statements and Informer’s Privilege
In its post-hearing brief, Film Allman renews its objection to “witness statements taken
by OSHA not being provided pursuant to the informer’s privilege.” (Film Allman’s brief, p. 44)
These witness statements were the subject of several motions to compel filed by Film Allman
prior to the hearing and of objections raised by Film Allman during the hearing. Film Allman
invoked both Brady v. Maryland, 373 U.S. 83 (1963) 1 and the Jencks Act 2 (laws that apply in
criminal proceedings) in its quest to obtain witness statements taken by OSHA during the fatality
investigation that gave rise to this administrative proceeding (Tr. 18-19, 786-788). In response
to Film Allman’s discovery requests, the Secretary provided redacted witness statements. In
response to a motion to compel filed by Film Allman, Dr. David Michaels, the Assistant
Secretary for OSHA, formally asserted the informer’s privilege. The Court denied Film
Allman’s motions for unredacted witness statements.
After the Secretary completed his direct examination of witnesses at the hearing, the
Court instructed the Secretary’s counsel to provide the unredacted statement of each witness to
Film Allman and gave Film Allman time to review the statement, in accordance with Massman-
Johnson (Luling), 8 BNA OSHC 1369, 1376 (No. 76-1483, 1980) 3 (Tr. 22). In so doing, the
Court adhered to well-established Commission precedent.
The Commission has long recognized the applicability of an informer's privilege
in its proceedings. Stephenson Enters., Inc., 2 BNA OSHC 1080, 1082-83, 1973-
1974 CCH OSHD ¶18,277, p. 22,401-02 (No. 5873, 1974), aff'd, 578 F.2d 1021
(5th Cir. 1978). . . . The purpose of the privilege is to protect the identity of

1
In Brady, the Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Id. at 87.

2
The Jencks Act, 18 U.S.C. § 3500, requires the government to turn over any pretrial statements of government
witnesses during criminal prosecutions. The statute enacted into law principles first announced in Jencks v. United
States, 353 U.S. 657 (1957).
3
[W]hen a witness has completed testifying for the Secretary on direct examination, the Secretary
shall, upon motion by a respondent, turn over to it all the witness's prior statements that are in the
government's possession and that relate to the subject matter of the witness's testimony. . . . The
Respondent shall be entitled to a recess for such reasonable time as is necessary to evaluate a
statement and prepare to use it in the hearing. In the event that a statement disclosed at the hearing
contains material that the respondent could not have discovered previously and that bears on the
issues in the case, the respondent shall be entitled upon request to a recess or continuance for such
time as is reasonably necessary to meet or take advantage of the new evidence.
Id. at 1376.
 informers, and thus it protects a communication to the extent that its contents
would reveal the informer's identity. . . . The Secretary may invoke the
informer's privilege to prevent disclosure of the identity of individuals who assist
in OSHA investigations. See Roviaro v. United States, 353 U.S. 53, 59 (1957)[.]
Birdair, Inc., 23 BNA OSHC 1493, 1494 (No. 10-0838, 2011).
Prior to the hearing, Film Allman argued the informer’s privilege should not apply to
people who were not employees of Film Allman (meaning witnesses employed by Rayonier or
CSX) because they had no fear of retaliation. The informer’s privilege, however, is not limited
to employees--it extends to any person who assists the Secretary with witness statements. It is
well-settled that “the informer’s privilege is applicable to any person furnishing information to
the government regarding violations of Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651–678, regardless of the informer’s employment relationship to the cited employer.”
Donald Braasch Const., Inc., 17 BNA OSHC 2082, n. 4 (No. 94-2615, 1997) (citing Quality
Stamping, 7 BNA OSHC 1285, 1287 (No. 78-235, 1979)). The informer’s privilege applied to
witnesses who were not employees of Film Allman.
Film Allman also argued it no longer had any employees, thus the informer’s privilege
should not apply. “None of the people interviewed by OSHA or the Secretary of Labor are still
on the payroll. Film Allman, LLC is a company that was set up expressly for the movie
Midnight Rider. Since that movie is no longer in production, Film Allman has no employees.
Thus, any risk of retaliatory action by the employer against employees who provided information
to OSHA is nonexistent.” (Film Allman’s March 5, 2015, motion, p. 5)
The informer’s privilege does not disappear once an employee parts company with the
employer. Former employees are still subject to the possibility of retaliation. 4
First, it is a fact of business life that employers almost invariably require
prospective employees to provide the names of their previous employers as
references when applying for a job. Defendant's former employees could be
severely handicapped in their efforts to obtain new jobs if the defendant should
brand them as “informers” when references are sought. Second, there is the
possibility that a former employee may be subjected to retaliation by his new
employer if that employer finds out that the employee has in the past cooperated
with the Secretary. Third, a former employee may find it desirable or necessary to
seek reemployment with the defendant. In such a case the former employee would
stand the same risk of retaliation as the present employee. There is no ground for

4
Each of Film Allman’s former employees who testified at the hearing was commanded to appear by a Court-
ordered subpoena.
 affording any less protection to defendant's former employees than to its present
employees. Wirtz v. B. A. C. Steel Products, Inc., 312 F.2d 14 (4th Cir. 1962).
Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir. 1972).
The Court determined the informer’s privilege applied to witnesses who were former
employees of Film Allman. To waive the informer’s privilege, a waiver “must be a voluntary
disclosure of the identity of the informer. It is not enough . . . that the identity of the informant or
informants appears obvious.” Braasch, 17 BNA at 2084. Here, Film Allman argued there was
no need to protect the identities of informers because the identities of everyone present at the
accident worksite was known to both sides (Film Allman’s March 5, 2015, motion, p. 5). Film
Allman’s awareness of the limited set of people OSHA may have interviewed does not constitute
a waiver of the informer’s privilege. See Braasch, 17 BNA at 2084 (“It is not enough . . . that the
identity of the informant or informants appears obvious.”); Dole v. Local 1942, Int’l Bhd. Of
Elec. Workers, 870 F.2d 368, 375 (7th Cir. 1989) (the fact that individuals were knowledgeable
about events does not mean that they actually gave information to the Department of Labor).
Film Allman’s knowledge of who may have given statements did not, in itself, overcome the
privilege. None of the witnesses at issue waived the informer’s privilege.
In proceedings before the Commission, “an employer can overcome the informer’s
privilege by showing that (1) it has a substantial need for the information that outweighs the
government’s entitlement to the privilege, and (2) the information is essential to the preparation
of its case and it is unable to obtain it by any other means.” Birdair, 23 BNA at 1495. “[A] mere
assertion that the information may be helpful to prepare a defense is not enough.” Braasch, 17
BNA at 2085.
Film Allman argued it needed the privileged information in the statements to develop
impeachment information for the primary witnesses against it and to develop favorable
exculpatory information for its defense. (Film Allman’s March 5, 2015, motion, p. 5). Film
Allman asserted that without knowing what favorable information had been provided to OSHA
or the Secretary, it did not know which witnesses to call in its defense at the hearing. (Id. at 6).
This argument did not establish the requisite substantial need to overcome the privilege.
The Commission has held, “The need to effectively cross-examine a witness is not sufficient
justification in and of itself for prehearing disclosure of such a witness’s statement. After a
witness has completed testifying on direct examination, however, respondents are entitled, upon
request, to obtain copies of all statements in the government’s possession relating to the subject
matter of the witness’s testimony.” Massman-Johnson (Luling), A Joint Venture, 8 BNA at 1378.
There was no need for Film Allman to review an informer’s statement for impeachment purposes
until that individual actually testified as a witness.
For these reasons, the Court determined witnesses in this proceeding, both non-
employees and former employees of Film Allman, were covered by the informer’s privilege and
none of them had waived that privilege. 5
Other Objections by Film Allman to Witness Testimony
At the hearing, the Secretary moved to admit the pre-hearing depositions of
Cinematographer Michael Ozier and Unit Production Manager Jay Sedrish, taken by OSHA on
May 5, 2014, and of First Assistant Director Hillary Schwartz, taken by OSHA on June 26, 2014
(proffered Exhs. C-26, C-30, and C-31). Film Allman objected to the depositions on the basis
that the deponents were no longer employees of Film Allman at the time of their depositions.
Film Allman argued the depositions were not admissible as statements made by Film Allman’s
employees on matters within the scope of that relationship under Fed. R. Evid. 801(d)(2)(D). 6
Film Allman contended the employment relationship with those witnesses ended within a few
days of the February 20, 2014, death of [redacted].
The Court reserved ruling on these depositions pending the receipt of the post hearing
trial depositions of Sedrish and Schwartz (Tr. 1187-1188). A review of the record confirms Film
Allman’s employment relationship with most of its employees ended the day after the death of
[redacted], when representatives of the International Alliance of Theatrical Stage Employees
(IATSE) arrived at Film Allman’s offices in Meddin Studios and shut down production of
Midnight Rider (Tr. 1120.) Schwartz submitted her resignation on February 24, 2014 (Tr. 1121).
By May 5, 2014, when OSHA took their depositions, neither Ozier nor Sedrish were employees
or agents of Film Allman. The Court now rejects Exhibits C-26, C-30, and C-31. 7 (The

5
In its post-hearing brief, Film Allman does not point to a single witness statement which, if available to it before
the hearing, would have aided or altered Film Allman’s defense. Film Allman does not show or claim the
unavailability of unredacted witness statements prejudiced its case.

6
Fed. R. Civ. P. 801(d)(2)(D) provides that a statement is not hearsay if it meets this condition: “The statement is
offered against an opposing party and . . . was made by the party’s agent or employee on a matter within the scope
of that relationship and while it existed[.]”

7
OSHA also took depositions of Randall Miller and Jody Savin on May 6, 2014 (Exhs. C-25 & C-29). As owners
of Film Allman, LLC, Miller and Savin are agents for the company and their depositions are not hearsay under Fed.
Secretary subsequently took post-hearing trial depositions of Schwarz and Sedrish that are part
of the record.)
Film Allman also objected at the hearing to the “testimony of [CSHO] John Vos which
was based on employee interviews that were not provided to Film Allman” and testimony of
Charley Baxter and Hillary Schwartz regarding incidents when Randall Miller filmed scenes of a
movie without permission from the property owners (Film Allman’s brief, p. 44; Tr. 138-143).
The Court overruled Film Allman’s objections and will not revisit those rulings here. The Court
notes it did not rely on the disputed testimony as the basis for any findings of fact or conclusions
of law.
Background
Film Allman Personnel
Randall Miller and Jody Savin, who are married to each other, write and produce films
together. They met while attending the American Film Institute in Hollywood, California, from
which they received MFA degrees (Exh. C-25, pp. 8-10; Tr. 1010). Randall Miller has also
directed films and television shows (Tr. 1012-1013). Their residence is in Pasadena, California,
where they formed Unclaimed Freight Productions, Inc., in 1998. Unclaimed Freight is an
independent production and personal services company for Miller and Savin. It was the
managing company for Film Allman (Exh. C-25, pp. 17-18; Tr. 1015-1016, 1143).
In 2010 Miller and Savin began an association with Meddin Studios, located in a former
meatpacking plant in Savannah, Georgia, when they produced a film called Savannah (Exh. C-
25, p. 37; Tr. 914-917, 1073-1074). They then wrote and produced (and Miller directed) CBGB,
a film about the iconic New York music club. Although the film is set in New York, Miller
filmed many of CBGB’s scenes in Savannah, with the support of Meddin Studios (Tr. 1020-
1021).
Miller and Savin also wrote an unproduced screenplay about Dennis Wilson of the Beach
Boys. This screenplay brought them to the attention of Gregg Allman’s agent, who approached
them about adapting My Cross to Bear, Allman’s autobiography, for film (Exh. C-25, pp. 24-25).
Gregg Allman and his older brother Duane were two of the founders of The Allman Brothers
Band, which was inducted into the Rock and Roll Hall of Fame in 1995. Duane Allman died in a

R. Civ. P. 801(d)(2)(D) (Exh. C-29, p. 14). The Court admitted Exhibits C-25 and C-29 without objection (Tr. 710,
719).
motorcycle accident in 1971 at the age of 24, an event which deeply affected Gregg Allman and
figures prominently in his autobiography (Exh. C-25, pp. 27-29, 54; Tr. 1045-1046). Miller and
Savin read the autobiography and subsequently met with Gregg Allman. After negotiations, it
was agreed Miller and Savin would write the adapted screenplay and produce the film (now
called Midnight Rider: The Gregg Allman Story). Allman was an executive producer on the
film and Miller agreed to direct it (Exh. C-25, p. 26; Tr. 1021-1022).
Miller and Savin formed Film Allman, LLC, for the purpose of producing the film.
Producers of independent films form production companies for individual movies because, as
Miller explained, “[Y]ou have investors for every single movie and they’re different from the
other investors from the last movie.” (Tr. 1015) The budget for Midnight Rider was
approximately $5,000,000.00 (Exh. C-25, p. 20; Tr. 965). Miller and Savin retained Meddin
Studios once again to provide them with production services (Tr. 925, 1045).
Film Allman (through Miller and Savin) hired Jay Sedrish as the movie’s Unit Production
Manager (UPM) and Executive Producer (Exh. J-1, Stipulated Facts, ¶ 6; Exh. C-25, p. 38). The
position of UPM is defined as a supervisory positon by the Director’s Guild of America (DGA).
The UPM is “in charge of fiscal and hiring people,” among other duties (Tr. 1026) Film Allman
hired union employees for Midnight Rider, including members of DGA, Teamsters, IATSE,
Studio Mechanics, and Screen Actors Guild (SAG). Each of the department heads of the film
hired union employees appropriate to his or her department (Exh. C-25, p. 21-22, 44; Tr. 1033-
1034).
UPM Sedrish hired five or six employees as front office staff (Tr. 1027). Director Miller
hired Hillary Schwartz as the First Assistant Director (AD) (Exh. J-1, Stipulated Facts, ¶ 7; Exh.
C-25, p. 45, 48; Tr. 1028). As First AD, Schwartz prepared the shooting schedule and
supervised the safety of the crew and cast members on the set (Tr. 1028, 1029, 1034). Sedrish
hired Michael Ozier as Cinematographer, Melissa (Missy) Stewart as Production Designer, and
Charles (Charley) Baxter as Location Manager (Exh. J-1, Stipulated Facts, ¶¶ 8, 11, 12). As
Location Manager, Charley Baxter was responsible for scouting and securing locations for
filming. (Exh. J-1 Stipulated Facts, ¶ 9) Baxter hired an Assistant Location Manager (Exh. J-1,
Stipulated Facts, ¶ 10). In their capacity as producers or department heads, Miller, Savin,
Sedrish, Schwartz, Ozier, Stewart, and Baxter were management personnel with supervisory
authority over subordinate, or below-the-line, crew members (Exh. C-25, p. 48).
 Film Allman also hired approximately 40 actors, including William Hurt and Tyson
Ritter who were cast as older and younger versions of Gregg Allman, and Wyatt Russell as
Duane Allman (Tr. 1042-1043, 1063-1064). First AD Schwartz scheduled the film to begin
shooting in late February and to continue for twenty-four or twenty-five days. One of
Schwartz’s primary concerns with scheduling was William Hurt was only available for “a week
of prep and a week of shooting, the first week of shooting, five days.” (Schwartz deposition, p.
21).
January 27, 2014, Email from CSX
The screenplay for Midnight Rider originally featured a scene involving Gregg and
Duane Allman riding together on a motorcycle (Exh. J-4). In the scene, the brothers are stopped
in traffic by street construction. “[I]nstead of waiting to go around it, they whipped over and got
on the railroad tracks and rode down the railroad tracks to get around it.” (Tr. 133) (This is not
the scene Film Allman was attempting to film on the Doctortown trestle on February 20, 2014
(Tr. 214-215).)
It was Location Manager Charley Baxter’s responsibility to find railroad tracks on which
the scene could be filmed. CSX Transportation owns a number of railroad tracks in and around
Savannah. Baxter testified “CSX tracks were pretty much all around us. They were near our
production office and a lot of places that we went to. So it was a natural request to go to them.”
(Tr. 133) Baxter contacted a representative of CSX to request permission to film the motorcycle
scene on CSX railroad tracks. The CSX representative responded with an email on January 27,
2014.
Dear Mr. Baxter:
Thank you for contacting us regarding filming on CSX property.
In accordance with our company protocol, CSX does not permit filming on our
property. This is based on concern for the safety of those accessing and working
on our railroad, security considerations, and our commitment to ensuring on-
schedule train operations for the customers we serve.
Our first priority is safety. CSX strives to be a good neighbor in the communities
in which we operate. We hope you understand our position, and we apologize
that we are unable to accommodate your request. 8
(Exh. C-24)

8
Employees of Film Allman had worked on productions in the past for which CSX permitted movie and television
companies to film on its property (Tr. 113, 395, 397, 591).
 Miller and Savin rewrote the scene so that Duane and Gregg Allman rode through some
woods rather than on railroad tracks (Tr. 216). Miller testified he told Baxter, “Well, it could be
the same thing if he goes off the road and goes through some trees and comes back on. Find
that.” (Tr. 1047).
Scene 14
The screenplay for Midnight Rider comprises 197 scenes (Tr. 1041). The first scene
scheduled for shooting was Scene 14, a wordless dream sequence that begins with a close-up of
the older Gregg Allman, played by Hurt:
He opens his eyes, disoriented, and looks around:
EXT. TRAIN TRACK (D5)
His hospital bed is in the middle of a train track. Gregg gets out of the bed in his
hospital whites and bare feet. He sees a BRIDGE ahead, a train trestle. It is
TWIGHLIGHT. On the opposite side he sees the silhouette of a person, long hair
rustling in the breeze.
Gregg takes a step forward; the beauty of the image lures him. The silhouette
moves to the light. It appears to be Duane, but he doesn’t motion, doesn’t speak.
Gregg stops still. The message is clear: Don’t cross this bridge.
(Exh. J-3) (emphasis in original) Director Miller anticipated Scene 14 would last “[t]hirty
seconds max” in the finished film (Tr. 1054).
Film Allman wanted to film Scene 14 between 4:00 and 6:00 p.m. on February 20, 2014,
because that time period would encompass “the magic hour and the light is quite pretty at that
time.” (Schwarz deposition, p. 78) This scheduling was “a creative decision made by Randy
[Miller] and Mike [Ozier]” and had nothing to do with scheduling around expected train traffic
(Id.).
Location Manager Charley Baxter and his department worked with Production Designer
Missy Stewart to find a location for Scene 14 (Tr. 115). They were looking for “a train trestle,
preferably with some interesting architectural feature, with tracks that go over water.” (Tr. 116)
In early February of 2014, a Film Allman employee performed a Google search and found the
Doctortown train trestle, located at 1300 Doctortown Road in Jesup, Georgia (Exh. J-1,
Stipulated Facts, ¶ 13; Tr. 115).
The historic Doctortown trestle (site of a Civil War battle) spans the Altamaha River and
at one time was operated as a draw bridge (Exh. C-25, pp. 81-82; Tr. 809-810, 1060). The
distance between the areas of the Doctortown train trestle where the employees were located at
the time of the accident and the Altamaha River below is 25 to 30 feet (Tr. 728). From edge to
edge, the trestle is approximately 13½ feet wide. The distance between the rails is approximately
5 feet (Exh. C-7). A narrow walkway made of grated metal runs along the right side of the
bridge beam on the east side (Exhs. C-1, C-2, C-7, C-20). The width of the grated walkway is
approximately 3 feet (Exh. C-7, C-9). Two lengths of wire cable form a top rail and intermediate
rail at the outer edge of the walkway (Exh. C-2a).
The railroad tracks leading to the trestle on the southern side of the Altamaha River run
across private property owned by Rayonier Performance Fibers, LLC. Baxter contacted
Rayonier seeking access to the trestle. He ultimately reached Rayonier’s Communications
Manager (Exh. J-1, Stipulated Facts, ¶ 14; Tr. 117). Rayonier’s Communications Manager
agreed to allow a group of Film Allman management employees onto Rayonier’s property to
scout the location. On February 7, 2014, the Communications Manager greeted Baxter,
Schwartz, Ozier, Sedrish, and Stewart at one of the gates of Rayonier’s fenced property and
escorted the group to the Doctortown trestle. The visit lasted thirty to sixty minutes. No trains
passed by during the visit. At some point during the February 7 visit, Rayonier’s
Communications Manager informed Film Allman’s management personnel that CSX owned the
railroad tracks (Exh. J-1, Stipulated Facts, ¶¶ 15-20).
Doctortown Trestle Not Scouted During February 12, 2014, Tech Scout
Film Allman stipulated, “On February 12, 2014, a ‘tech scout’ was done for multiple
locations. Film Allman did not go to the Doctortown trestle on this tech scout [and it] did not
conduct a tech scout for the Doctortown train trestle.” (Exh. J-1, Stipulated Facts, ¶¶ 22-24) The
Key Grip stated it is standard to do a tech scout for each location but Film Allman “never
actually went on a tech scout for the [trestle] location at all.” (Tr. 384)
Baxter explained a technical or tech scout occurs when a film’s director and department
heads travel as a group to “each one of the locations that have been chosen. And the director and
director of photography and the first assistant director kind of walk everybody through. . . .
[T]he point of the tech scout is to discuss all the technical aspects, . . . as many of the details as
we can so we can plan to be prepared on the day that we start filming.” (Tr. 119-120) Tech
scouts are time-consuming. They are “fourteen to fifteen hours sometimes. Or at least twelve or
thirteen hours, spending fifteen to twenty minutes, maybe thirty minutes at each one. You're
lucky to get it done over two days in a lot of circumstances where there's a lot of locations.” (Tr.
121) Generally, a film company performs the tech scout “three or four days in advance” of
filming “to prepare for the things that you find out.” (Tr. 120)
Director Miller stated a tech scout is a valuable tool for addressing potential
complications prior to filming. A tech scout is “generally a way to sort of disseminate
information and then people will tell you problems. They’ll tell you this is a problem because of
x. This is a problem because of y.” (Exh. C-25, p. 86) He testified Film Allman had considered
and rejected conducting a tech scout of the Doctortown trestle site. “[W]e probably talked about
it, and the idea was that it was an hour and a half away and the tech scout -- we had about thirty
people on the tech scout. . . [b]eing paid $20 an hour, some $40 an hour. . . . In retrospect, yeah,
we should have done a tech scout on that one because what this is costing and everything, of
course, but unfortunately hindsight's 20/20 and everything. It was probably a financial reason we
didn't go there.” (Exh. C-25, p. 89)
Safety Bulletin # 28
“[First AD] Schwartz and [UPM] Sedrish were responsible for approving the Call Sheet
prior to its issuance to [Film Allman’s] employees. Schwartz [and Sedrish] declined to attach
Safety Bulletin # 28 Guidelines for Railroad Safety to the Call Sheet for February 20, 2014.”
(Exh. J-1, Stipulated Facts, ¶¶ 27-29)
A call sheet is a fact sheet for each crew member detailing what is planned for the next
day. It lists the location and scenes to be filmed, who is required to be there and when, and
special requirements from departments, such as props and transportation. It is standard industry
practice to include safety-related information on or attached to the call sheet for the day’s filming
regarding the location and potential hazards. Call sheets can include information to alert the cast
and crew to weather conditions or whether they need to wear protective clothing. Call sheets can
also alert employees to safety issues that may be present at a location, including working near a
road, on or over water, around helicopters, at heights that may present a fall hazard, with
weapons or pyrotechnics, and around stunts (Tr. 125, 471-472, 532-533, 592).
Contract Services Administration Trust Fund (CSATF) provides safety bulletins for the
motion picture and television industry. Its Safety Bulletin # 28 addresses Guidelines for Railroad
Safety (Exh. C-28). Safety Bulletin # 28 states in pertinent part,
There are strict rules governing rail work. These rules must be communicated to
and followed by all cast and crew. . . . Prior to starting rail work, the Production,
in conjunction with the railroad representative, will conduct a safety meeting with
 all involved personnel to acquaint cast and crew members with possible
workplace risks.
* * *
10. Be aware that the train is significantly wider than the track’s width. 15 feet
from either side of the track is considered a safe distance. Closer distances need
to be approved by the designated railroad representative.
* * *
12. Never sit, walk or stand on the rails, ties, switch gear, guardrails or other
parts of the track or structure. Be aware that tracks can move.
* * *
14. Do not place any objects on the rails, switches, guardrails or other parts of the
track structure. If the performance of any of these activities is required for
production purposes, specific permission must be obtained from the designated
railroad representative and additional safety precautions may be required.
(Exh. C-28, pp. 1-3)
The Key Second Assistant Director prepared the call sheet for February 20, 2014, under
the supervision of Schwartz. He asked her if he should attach copies of Safety Bulletin # 28 to
the call sheets. Schwartz told him no, then reconsidered and told him to ask Sedrish about it
(Schwartz deposition, p. 66). Sedrish testified the Key Second Assistant Director asked him
about attaching the safety bulletin. “And I said, ‘No, no, no.’ It’s a pet peeve of mine, like,
making the packet—the call sheet packet so big that it’s, you know—you see pieces of paper
everywhere. If you want one, grab one.” (Sedrish deposition, p. 97) “I don’t like to put a bunch
of attachments on the call sheet.” (Id. at p. 96). Sedrish stated he told him to place the safety
bulletins in a stack somewhere in Meddin Studios so they were available if crew members
wanted to take one.
Baxter testified he was familiar with Safety Bulletin # 28 because “the other films that I
worked on, these [safety bulletins] were generated to be attached to the call sheet so that the crew
and everybody else involved would know the safety protocol to make sure everybody stays
safe.” (Tr. 124-125) First AD Schwartz testified it is industry practice to attach safety bulletins
to call sheets. “It’s one way to disseminate safety [bulletins].” (Schwartz deposition, p. 66)
Miller, who is a member of DGA and who has worked in the film industry for more than
twenty-five years, stated he was unfamiliar with CSATF safety bulletins.
Q. I'm going to flip it to the third page. And this is -- it's industrywide labor
management safety committee, safety bulletin number 28, guidelines for railroad
safety. Have you ever seen that before?
Miller: No, I've never seen this before. . . . This is from the IA? Who's this from?
 Q. This is from -- this is from the Contract Services Administration Trust Fund,
CSATF.org. Have you ever heard of that?
Miller: No. Is that something to do with movies? Yeah. No, I have not seen this
before.
Q. Are you a member of the Directors Guild?
Miller: I'm a member of the Directors Guild, the Writers Guild, and the IA.
Q. Do you know, does the Directors Guild have a website you can go to?
Miller: Yes.
* * *
Q. Have you ever looked at the safety section of it?
Miller: I have not looked at the safety section of that one, no.
(Exh. C-25, pp. 134-135)
CSX Denies Film Allman’s Request for Permission
to Film on Tracks near Doctortown Trestle Site
Following the trestle site visit, Baxter and Rayonier’s Communications Manager
continued to correspond regarding the possibility of Film Allman shooting a scene on the CSX
tracks on Rayonier’s property on February 20, 2014. (Exh. J-1, Stipulated Facts, ¶ 21). On,
Friday, February 14, 2014, at 7:14 p.m., Baxter sent a CSX employee an email, which he first
reviewed with Schwartz and Sedrish (Exh. J-1, Stipulated Facts, ¶ 26). The email Baxter sent
stated in pertinent part,
Thank you for taking the time to try and help us with our request. Midnight Rider
is an independent film based on the life of the legendary Gregg Allman from the
Allman Brothers Band. The movie will star Oscar winner William Hurt as the
older Gregg.
Specifically we would like permission to access CSX tracks with 5 people and no
vehicles on Thursday February 20, 2014 for 20 minutes between 4 PM and 6 PM.
We will have 15 people with us; however, only 5 will need access to the tracks.
We are simply filming two actors staring at each other from approximately 50
yards apart. We will not be attaching anything to the tracks or ties.
The tracks are located on Rayonier’s Jessup Mill location, 4470 Savannah Hwy.
Jessup, GA 31545.
The site we’re requesting is just south of the Doctor Town Trestle on the
Altamaha River.
Rayonier has embraced our film and we are staging on their property. I’ve cc’d
[Rayonier’s Communications Manager] on this email. . . . [Rayonier’s
Communications Manager] and I would like the opportunity to meet your Safety
Inspector at the location so we can explain the request in more detail.
(Exh. J-1, Stipulated Facts, ¶ 25)
In the third paragraph of the email, Film Allman purposefully misrepresented the number
of employees it planned to have on the tracks for Scene 14. Twenty to twenty-three Film Allman
employees were on the railroad tracks of the Doctortown trestle at the time of the accident, not
the five employees indicated by the email (Exh. J-1, Stipulated Facts, ¶ 56). Sedrish (who as
UPM had supervisory authority over the Location Manager) testified he overrode Baxter’s initial
estimate.
Charley and I wrote this email. Okay. And I said—I was the one who said,
“We’ll have fifteen people with us, and five will need access to the tracks.”
Okay. And that was based on my having read the script and also based on the fact
that we were going to have to keep it small if we were going to get permission.
Okay. And that’s something I was—I said that because Charley said, “Well, it’s
going to be more.” I said, “No. If you want to get permission, it has to be small.”
And so that’s what we sent.
(Sedrish deposition, pp. 40-41)
In the sixth paragraph of the email, Film Allman also misrepresented the location of the
railroad tracks on which it wanted film Scene 14. Film Allman stated, “The site we’re requesting
is just south of the Doctor Town [sic] trestle,” implying the film company was not seeking
permission to film on the trestle itself. The record evidence establishes, however, Film Allman
always intended to film on the trestle.
The week Film Allman sent the email, CSX was “dealing with weather-related issues . . .
because of the crazy weather up north.” (Exh. R-18) The following Monday, February 17, was
Presidents Day. Baxter did not hear from the CSX employee until Thursday, February 20, 2014,
at 10:47 a.m., when he received an email denying Film Allman permission to film on CSX’s
property:
Mr. Baxter,
I am sorry for the delay in getting back with you. Unfortunately, CSX not [sic]
able to support your request. As discussed, I do suggest that you reach out to the
short line railroads as they routinely will support filming support [sic].
Thanks so much, it sounds like a great production.
(Exh. J-1, Stipulated Facts, ¶ 30)
Baxter forwarded the email to the email addresses of Miller, Savin, Sedrish, Schwartz,
Stewart, and his Assistant Location Manager (Exh. J-1, Stipulated Facts, ¶ 31). Baxter discussed
the email with Sedrish, Schwartz, and Stewart that morning. He stated, “[A]fter we looked at the
email we were like, “Oh, well, there you go.” (Tr. 135)
Stealing a Shot
In the film industry, stealing a shot is filming at a location without permission (Exh. C-
25, pp. 207-208). UPM Jay Sedrish testified that prior to receiving the February 20, 2014, email
from CSX, he had “some vague” discussions with his colleagues about what to do if CSX denied
permission to film near the Doctortown trestle (Sedrish deposition, p. 45). When asked what was
discussed, Sedrish responded, “What should we do? Do we—can we get Randy to write it out?
What are our options? Can we cheat 9 the shot; make it look like we’re on the tracks but not on
the tracks? Can we—I know this is a bad term to use—can we steal the shot, you know, do it
without permission . . . .? This was rejected.” (Id. at 46).
Later in his testimony, Sedrish seems more equivocal about Film Allman’s rejection of
the option to steal a shot.
Q. And when you said “steal a shot,” did you say that you rejected that idea?
Sedrish: Yes. We all—well, let me see. I—no one like that idea. . . . If I
remember, when it actually came up, nobody liked that idea.
Q. Who was the “nobody” that you remember?
Sedrish: I can’t—I mean, I know I had that conversation with Missy [Stewart].
And I would be guessing as to who else I had the conversation with.
(Sedrish deposition, p. 100)
On Location at the Doctortown Trestle
Despite CSX’s explicit denial of permission to film on its tracks, Film Allman proceeded
with its plan, as set out in its February 20 call sheet, to leave Meddin Studios at approximately
1:30 p.m. with employees in three shuttle vans and travel to the Doctortown trestle. Some
employees arrived in their personal vehicles. (Exh. J-1, Stipulated Facts, ¶¶ 32-33; Exh. J-7).
Rayonier’s Communications Manager met Film Allman’s employees at one of the gates to
Rayonier’s property. She had arranged with Rayonier’s security service, identified as DSI, for
two of DSI’s security guards to unlock the gate and permit Film Allman’s employees to enter
and access the railroad tracks (Exh. J-1, Stipulated Facts, ¶¶ 34-35). The film company parked
the vans, personal vehicles, trailers, and equipment vehicles in an area east of the railroad tracks

9
To cheat the shot means to use camera angles to make it appear as though actors or objects are located in areas
where they are not (Sedrish deposition, p. 98).
and north of Doctortown Road, which crossed the tracks. The film company referred to the
parking area as base camp or the staging area (Exh. J-14; Tr. 469).
Miller, Savin, Sedrish, and Schwartz knew the railroad tracks were live tracks, in active
use by CSX, and that CSX had refused permission to film on the tracks (Exh. J-1, Stipulated
Facts, ¶¶ 49-50). Supervisors Miller, Savin, Sedrish, Schwartz, and Ozier were aware no CSX
representatives were present at the site to control train traffic while the employees were on the
trestle. None of Film Allman’s supervisors informed the crew and cast members that CSX
would not be on site and would not be controlling train traffic while they were filming on the
tracks (Exh. J-1, Stipulated Facts, ¶¶ 49-52).
A Hairstylist for Film Allman testified she learned on February 20, 2014, she was to
travel with the film company to another location a few minutes before the 1:30 departure time.
Film Allman did not give her a safety bulletin or inform her they were planning to film on
railroad tracks. 10 No one discussed rail work safety with her during the ride to the location. The
Hairstylist rode in the same van as Randall Miller, Jody Savin, and Hillary Schwartz, among
others (Tr. 165-167).
After the film company arrived at the Doctortown trestle, one of the actors sustained a
slight injury and asked for an adhesive bandage. The Hairstylist stated, “And that’s when we
realized that there wasn’t a medic, because we were looking for a medic to get him a Band-Aid.”
(Tr. 169) She found it odd there was no set medic that day. “[T]here’s usually always a medic
on location.” (Tr. 169) Location Manager Baxter was also absent from the Doctortown trestle
site that day. He sent his Assistant Location Manager in his place (Tr. 136).
According to all the former crew members who testified, First AD Schwartz did not hold
a safety meeting before the first shot of the day, as is customary on a film set (Tr. 170, 294, 396,
545). 11 The Key Grip described how the First AD usually runs a safety meeting.
Normally when we would do something that could be considered hazardous,
whether it's a stunt or whether it's just the location itself could be dangerous, we

10
The Key Grip testified Film Allman was scheduled to conduct a camera test at the Doctortown trestle site on
February 20 and not actually film a scene for the movie. He believed Film Allman had scheduled the following
Monday, February 24, as the first day of filming (Tr. 387)
11
Schwartz claims she provided two safety briefings or announcements on February 20 but admits she did not
affirmatively call people together for either announcement and assumed those within earshot could hear her
(Schwartz deposition, pp. 44, 71-72, 122-127). The Court credits the testimony of Film Allman’s former crew
members who testified Schwartz did not hold a safety meeting on February 20 as the term is understood in the film
industry.
 would have a safety meeting and somebody that was -- normally it would be the
First AD would come up and would say something. If there was a stunt person
that was in charge of a stunt, that would be when they would come in and say
what was going to happen. On train tracks, normally you would have the CSX
person there and they would tell you what's going on and what the flow is of the
day and how it would be handled.
(Tr. 395) (emphasis added)
The Key Set Costumer testified that generally the First AD used the safety meeting to go
over the expected events of the day and instruct the crew members how to react to unexpected
events.
[A safety meeting is] a coming together of the crews so that everybody can be on
point to know what was going happen or what they were anticipating happening
and what you would do in the event that something went awry. With firearms, the
prop master would show the entire crew that the chamber was empty. He would
walk around so that each person could see that. If we were doing explosives, the
safety meeting would usually entail having the special effects person give
instructions about what needed to happen, what needed not to happen. You know,
and turn your walkies off -- you know -- you know, kind of like cues so that
everybody could be anticipating what was going to happen and what would
happen in the event that, you know -- if somebody caught on fire. A lot of time
they would give – you know, say who would do what so that we would know that
if something went wrong.
(Tr. 541-542)
After everyone arrived at the site, most of the film company congregated near the railroad
tracks south of the Doctortown trestle. Some employees, including Savin and Sedrish, remained
at base camp near the parked vehicles. Miller and Ozier started filming some shots of Hurt in the
hospital bed set up on the western side of the railroad tracks (Exh. C-19; Tr. 1090, 1098). The
film company stayed to the side of the railroad tracks until two trains passed by, within fifteen to
twenty minutes of each other. The Hairstylist noted, “The first train came through fast, but the
second train came through faster.” (Tr. 173-174) The B Camera Operator used his phone to
record video of the second train (Exh. C-19). He stated, “[M]y attempt was to take a video of the
first train that was going by because I was kind of alarmed how fast it was going and how close
we were. But I actually couldn't get my phone out in time to take the video. So when the second
train came by, I did.” (Tr. 297) He testified the second train “was moving remarkably fast and
was really—you know, the wind coming off the train was very strong.” (Tr. 299) The Key Grip
also stated the trains were “going pretty fast.” (Tr. 403) 12
After the second train passed, Miller and Ozier walked out on the trestle. This was the
first time Director Miller viewed the trestle in person. Miller had not accompanied Film
Allman’s management employees on the February 7 location scout and Film Allman did not
conduct a tech scout of the site. Based on Ozier and Schwartz’s descriptions after the location
visit, Miller had originally planned to film Scene 14 with the hospital bed situated in the middle
of the trestle’s span across the river. Upon seeing the trestle for himself, however, Miller was
surprised at its immensity. “I hadn’t been to the location, so when I got there and I realized it
was a lot bigger or whatever than I imagined . . . I was scared to go out there. . . . [W]hen you
look through it, it was like you see down. . . . And I said, no, no, no, no. Let’s just do it over
here, because I don’t want to be that far out. That’s scary for me.” (Exh. C-25; pp. 74-75)
Crew members began carrying equipment and props out on the trestle, including the
hospital bed (Exh. J-1, Stipulated Facts, ¶¶ 53-55). The Gaffer helped carry the hospital bed
onto the trestle. He stated the hospital bed “was heavy. And once we got to the trestle, I
remember it was difficult to walk because of the gaps between the railroad ties. So we had to
really watch our step as we were going out.” (Tr. 611) The hospital bed was placed
perpendicular across the tracks, approximately 100 feet from the south end of the trestle (Exh. C-
14). As Second Camera Assistant, [redacted] duties included moving accessories and gear and
operating the slate (Tr. 289). The camera crew had two cameras, a case of lenses, and a bag of
accessories on the trestle (Tr. 310).
The Hairstylist described the difficulty the cast and crew members experienced with their
footing on the trestle. “[Y]ou had to be very careful where you stepped. I was very mindful of
each step, because it wasn't -- well, you could just go at a pace, I would say, without falling. . . .
[b]ecause of the little holes that it had in the middle of the tracks. There were a lot of little holes
that I know for myself I would have been afraid to fall and get my foot stuck in it or something.”
(Tr. 181) The Key Set Costumer also stated footing on the trestle was treacherous. “I stepped to
the middle of the track, you know, which was also uncomfortable because I felt like there were
some areas of the track that you can see the water through. So it was just -- I was just being as

12
Film Allman misrepresents the perceived speed of the trains in its post-hearing brief: “Two trains went by. The
trains appeared to be traveling at a slow or moderate speed[.]” (p. 17)
careful -- carefully footed as possible to -- to, you know, take care of myself as much as I could
while I was up there.” (Tr. 549)
Two Trains and Sixty Seconds
Film Allman’s former crew members stated repeatedly they were told by First AD
Schwartz and the Assistant Location Manager that only two trains were scheduled to cross the
Doctortown trestle on February 20, 2014 (Tr. 175, 293, 295, 335, 399, 412-413, 478, 608). This
proved to be wildly inaccurate.
James Murray is CSX’s trainmaster for the railroad tracks at issue (Tr. 60). He testified
CSX’s train schedules are not available to the public due to security concerns (Tr. 74). 13 He
stated, however, trains on those tracks run both southbound and northbound and that it is
probably one of “our busiest sections of track that we have. This is pretty much a pipeline
from—one of two pipelines from the rest of the –our network into the state of Florida.” (Tr. 79)
Murray testified regarding the frequency of trains traversing the Doctortown trestle on the day
[redacted] was killed.
We have roughly anywhere from twenty-seven to thirty-three scheduled trains a
day that come through that location. That's northbound and southbound. We have
anywhere probably I'd say between six and ten non-scheduled trains, such as coal
trains and rock trains. Those run as needed to, you know, power plants in Florida
or, you know, rock facilities that need ballast and things like that for making
highways and stuff like -- you know, things of that nature. So those trains run
unscheduled. We don't know -- they don't run every day. But we [have] anywhere
from twenty-seven to thirty-three trains that run seven days a week through this
location. So on average you're probably looking about thirty-five trains a day with
the scheduled and non-scheduled per day going through that location. Could be a
little more, could be a little less.
(Tr. 71)
Murray estimated that when the accident occurred on the Doctortown trestle at
approximately 4:30 p.m. on February 20 “probably fifteen to twenty trains” had already crossed
the trestle since midnight (Tr. 72). He stated, “[Y]ou could have four or five trains in an hour
and you may not have one for maybe an hour. It’s very seldom you probably go that line without
the train coming within an hour, hour and a half.” (Tr. 88)

13
Miller, Sedrish, and Schwartz testified they learned the Transportation Security Administration has prohibited the
public availability of freight train schedules since 9/11. Schwartz and Sedrish testified they learned following the
February 7 site visit to the Doctortown trestle that CSX’s train schedule was not publicly available for those tracks
(Exh. C-25, p. 120; Schwartz deposition, p. 87; Sedrish deposition, p. 30).
 Incredibly, given Film Allman’s reliance on the information that only two trains were
scheduled to cross the Doctortown trestle on February 20, 2014, no one from the film company
inquired whether any trains had passed prior to its midafternoon arrival. Had Film Allman
inquired, the two DSI security guards who unlocked the Rayonier gate for the film company
would have informed them they saw a train cross the Doctortown trestle as they waited at the
gate shortly after lunchtime (Tr. 854, 870). The “third” train or accident train was, in fact, at
least the fourth train to cross the trestle since early afternoon on February 20.
As the film company prepared to shoot Scene 14, several members of the cast and crew
were standing on the trestle near the hospital bed, including First AD Schwartz, Hurt, the
Hairstylist, and the Gaffer. The Hairstylist testified, “Before the third train 14 came, we were
already on the trestle. And Mr. Hurt asked if another train was coming. The response was no.
And then Mr. Hurt asked, ‘In the event of another train coming, how much time do we have to
get off?’ And the response [from Schwartz] was sixty seconds.” (Tr. 183; 191) Hurt replied,
“That’s not a lot of time.” (Tr. 309). Schwartz did not reply to Hurt’s observation (Tr. 312).
When asked what the crew members should do about the bed in the event another train arrived,
Schwartz replied, “I don’t know. I guess we take it.” (Schwartz deposition, pp. 42-43) Schwartz
identified this exchange as one of the two safety briefings she provided to employees that day.
Schwartz obtained the “sixty seconds” information by radioing the Second Second AD,
who was standing next to the Assistant Location Manager near the parked vehicles at base camp.
The Assistant Location Manager had originally told the Second Second AD no trains would pass
by while the film company was onsite, but later stated, “If there was a train coming, there would
have been two of them (Tr. 476; 506). When Schwartz radioed the Second Second AD to ask
how long the employees had to clear the trestle, he relayed the question to the Assistant Location
Manager. He testified, “So I confirmed 15 with the Locations Assistant there and sixty seconds
was what was determined.” (Tr. 485)
There is no explanation in the record how the Assistant Location Manager arrived at the
sixty seconds estimate. Neither party adduced evidence establishing how far from the end of the

14
Film Allman’s former employees referred to the accident train as the third train. The accident train was the fourth
train the DSI security guards saw cross the Doctortown trestle the afternoon of February 20, 2014.
15
From the context, the Court considers it likely the Second Second AD meant to say, or possibly did say,
“conferred” rather than “confirmed.”
trestle the trains were when the employees first saw them or heard their horns or whistles. The
respective speeds of the three trains observed by the film company were not established. 16 Based
on the testimony of the witnesses regarding the location of base camp, as well as the map and
aerial photograph (Exhs. C-32 and J-14), it is evident the Second Second AD and the Assistant
Location Manager were well within a mile of the end of the trestle. Miller testified that at the
time the first two trains went by, he could see all of Film Allman’s employees on the site from
his vantage point at the foot of the trestle (Tr. 1095-1096).
There is no evidence Film Allman sent employees farther south on the tracks to observe
how many seconds it took for a train to pass between two points or from how far away
employees could hear a train’s horn or whistle. It is difficult to determine how the Assistant
Location Manager was able to ascertain how much time employees had to clear the trestle when
a train approached. It is not clear if she calculated this herself or if she learned it from another
Film Allman employee or a third party. The Assistant Location Manager did not testify at the
hearing.
The Accident
Before Hurt lay down on the hospital bed, he said to Schwartz, “So, two trains?” and
Schwartz replied, “Yes, two trains, but it couldn’t be confirmed.” (Tr. 612) This prompted the
Gaffer to ask Schwartz what she meant by that statement. “I asked her about six times, Hillary,
‘What does that mean, it can’t be confirmed—what’s the plan? What does that mean it can’t be
confirmed?’ And she didn’t answer me.” (Tr. 612) The Gaffer exited the trestle and sat on the
ground next to the beginning of the trestle (Tr. 613). From this position, the Gaffer was one of
the first employees to realize the third train was approaching. “I heard a horn and then I looked
back in the opposite direction from the trestle and saw the train like coming around the corner.
And I stood up at the beginning of the bridge and yelled, ‘Train!’” (Tr. 617)
This occurred at approximately 4:30 p.m., while twenty to twenty-three Film Allman
employees were located on the trestle approximately 100 feet from the southern bank of the river
(Tr. 811). The employees on the trestle gathered the equipment they had carried with them and
hurried in the direction of the oncoming train. The Hairstylist described her horrific experience.
[T]he location that I was on the trestle, I was more or less in the middle at the end
where the water was. And I started to run, but watching my step to get off the

16
The maximum speed allowed for trains crossing the Doctortown trestle is 70 mph, but maximum train speed is
also determined by train type (intermodal, freight, Amtrak, etc.) (Tr. 74-75).
 trestle to go towards the land. But by the time I saw the light of the train, the train
was coming really fast. So I realized that I couldn't get off. So instead of trying to
go to the land, I ran to the side and held on to the iron girder as tight as I could. . .
Once I held onto the iron girder, the train had already been coming. And the
pressure from the train was really strong. So it felt as if it was sucking me off of
what I was holding on to. And it did. It pulled me where I couldn't hold on. And
my arm went back into the train and it hit it and snapped it in half. As soon as the
train hit my arm, I grabbed it really quick, fell down and I held onto the cable and
wrapped myself up around the cable really tight while holding my arm. And a
sheet from the bed fell in front of me on the cable. So I grabbed . . . the sheet and
wrapped my arm up and made a tourniquet and just held on until the train
stopped.
(Tr. 183-184)
Several employees attempted to move the hospital bed off the tracks, but it came apart
when they picked it up. The Key Grip recounted the confusion on the trestle.
Well, while we were out there, all of a sudden we heard a horn and someone
hollered "train." When we looked up, we saw the train light coming around the
corner. So everybody was trying to grab their gear to get it out of the way. And at
that time, William Hurt jumped up off the bed. And Randy [Miller] came running
up, and he said, "Get the bed, get the bed." So William Hurt was trying to grab
the bed, and I was like, man, you don't have any shoes on. Go ahead and get off of
here, you know, you're going to get hurt. So we started to try to grab the bed. And
at that time when Randy ran up, he grabbed at the bed and it slid off of the -- the
wood rungs of the railroad track and went in between the rungs. And that's what
caught . . . one of the set dressers. It caught him in the leg and pinned him down.
And like I said, all of this happened in seconds. So I don't totally recall how
everything really happened. So we were trying to get the bed off the track. We
were trying to get [the set dresser] off of there. I remember grabbing a piece of the
bed and throwing it off of the trestle and getting [the set dresser] out of the way.
And at that time, that was when – and like I said, everything happened split
second. And I remember Randy was right next to me, and he said, "We're not
going to make it. We're not going to make it." And then basically I stepped over
to the side right before the train came through. And I don't know how I got around
the post but ended up on the other side up against the cable until the train stopped.
(Tr. 410-411)
The B Camera Operator was on the trestle north of the hospital bed when he heard the
Gaffer yell, “Train!” (Tr. 316) He stated, “The legs of the bed get stuck in between the . . .
railroad ties and they’re having trouble getting it out. And—and that creates a bottleneck that—
that anybody behind the bed can’t get off.” (Tr. 316) “[W]hen the train hit, I was I would say
ten, fifteen feet from the edge of the trestle, I think. And—and I was kind of penned against the
wire guardrail. . . . So I was—I was hit with a piece of debris when—when the bed exploded.”
(Tr. 319) Another employee removed the camera that was dangling from the B Camera
Operator’s shoulder. Although injured, the B Camera Operator was able to limp off the trestle
and onto the gravel to the side of the tracks (Tr. 319).
Exhibit J-19 is a video clip taken from the actual filming of Scene 14. It opens with Hurt,
playing Gregg Allman, lying in the hospital bed. The camera is pointed south and the end of the
trestle is visible beyond the hospital bed. Seventeen seconds into the video, two crew members
appear at the end of the trestle in response to the approach of the northbound train (there is no
audio accompanying the clip). As the actors and some crew members hurry off using the
walkway on the east side of the trestle, Miller and several other crew members start picking up
the bed. The cameraman who is filming is caught behind the obstruction caused by the
collapsing bed. Most of the crew members on the trestle are behind him. At approximately the
fifty-seven second mark (approximately forty seconds after it appears the crew members first
become aware of the approaching train), the cameraman gives up trying to exit the trestle and
instead leans against the wire cable as the train rushes by.
Exhibit J-20 is a video clip taken by Film Allman’s Still Photographer on the set. She
pushed the video button on her camera apparently inadvertently and ended up filming some of
the film company’s chaotic attempt to exit the trestle. (At one point [redacted] was pinned on the
trestle by one of the bed sections and the Still Photographer ran back and helped him extricate
himself (Exh. C-25, pp. 152-153)). Exhibit J-20 shows the employees attempting to remove the
bed as it falls apart, while the train is rushing towards them. The clip is only seventeen seconds
long and does not include the first few seconds after employees became aware a train was
approaching, but it is apparent upon viewing it the employees had fewer than the sixty seconds
Film Allman assured them they would have to clear the trestle (Tr. 1115). Viewing the two
video clips, it appears a few employees were able to exit the trestle before the train reached it,
but most of them were still on the trestle when the train arrived approximately forty seconds after
the employees realized a third train was coming.
Some of the bed parts were still on the tracks when the train hurtled across the trestle. As
the train braked to a stop, the Gaffer ran onto the trestle. “I went back to try to see how I could
help. And I noticed that everybody was very distraught when I walked onto the bridge and saw
[redacted] on the ground. And then I walked back and saw who was hurt. And then I went to try
to find a set medic but there wasn’t one.” (Tr. 618-619) First AD Schwartz found the Gaffer by
the parked vehicles. She grabbed him and told him, “[W]e need to do a head count. And let’s
gather everybody.” (Tr. 621)
The Second Second AD called 911 but did not know how to direct the emergency
personnel to the Doctortown trestle. “[O]nce we started talking, we had to figure out our – the
location itself, which I couldn't pinpoint if I tried. So I found a -- I think a transportation
employee to help me nail down where we were.” (Tr. 487)
The following day, Film Allman was holding a meeting at Meddin Studios to discuss
going forward with the project. Representatives from IATSE arrived and shut down the
production. Film Allman has not resumed filming Midnight Rider (Tr. 1120).
Criminal Proceedings
On March 9, 2015, Randall Miller pleaded guilty to the charges of criminal trespass on
the Doctortown trestle on February 20, 2014, and involuntary manslaughter for causing the death
of [redacted] without the intention of doing so by the commission of criminal trespass. That
same day, Jay Sedrish entered a plea of guilty under the provision in Alford v. North Carolina,
400 U.S. 25 (1970), to the same charges. On March 10, 2015, Hillary Schwartz was found guilty
of criminal trespass on the Doctortown trestle and of involuntary manslaughter for causing the
death of [redacted] without any intention to do so by the commission of criminal trespass (Exh.
J-1, Stipulated Facts, ¶ 80-85). At the time of the hearing in this proceeding, Miller was
incarcerated in the Wayne County Jail in Jesup, Georgia, where he is serving a two year sentence
for the criminal trespass and involuntary manslaughter charges (See, Order Directing Wayne
County Sheriff to Produce Inmate Randall Miller, dated March 30, 2015).
CITATION NO. 1
Items 1a and 1b: Alleged Serious Violations of § 1910.23(c)(1) and (e)(1)
Item 1a
Item 1a of Citation No. 1 alleges Film Allman failed to provide fall protection to its
employees working on the trestle: “West side of Doctortown Trestle, on or about February 20,
2014, employees were working near the edge of a train trestle that was not guarded, exposing
employees to a fall hazard.” Section 1910.23(c)(1) provides in pertinent part:
Every open-sided floor or platform 4 feet or more above adjacent floor or ground
level shall be guarded by a standard railing (or the equivalent as specified in
paragraph (e)(3) of this section) on all open sides except where there is entrance
to a ramp, stairway, or fixed ladder.
 It is the Secretary’s burden to establish four elements of a violation of a § 5(a)(2)
standard. “In order to prove a violation of the cited standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to
comply with the cited standard, (3) employees had access to the violative condition, and (4) the
cited employer either knew or could have known of the condition with the exercise of reasonable
diligence.” Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981). Film Allman
stipulated to all four elements of the violation of § 1910.23(c)(1), thus establishing the
Secretary’s prima facie case.
The Cited Standard Applies
Film Allman stipulated, “The requirements of 29 C.F.R. § 19[10].23(c)(1) applied to
Respondent’s work site on February 20, 2014 as described in Citation 1, Item 1a.” 17 (Exh. J-2,
Stipulated Points of Law, ¶ 3)
Film Allman Failed to Comply with the Cited Standard
Film Allman stipulated it “failed to comply with 29 C.F.R. § 19[10].23(c)(1) when the
west side of the Doctortown trestle did not have standard railings on February 20, 2014.” (Exh.
J-2, Stipulated Points of Law, ¶ 4) The photographic exhibits show the west side of the
Doctortown trestle is not equipped with guardrails, standard or otherwise. The areas between the
metal girders that rise at an angle to form an inverted V are open-sided (Exhs. C-1 through C-4,
C-8, C-14).

17
Items 1a and 1b of Citation No. 1 cite subsections §§ 1910.23(c)(1) and (e)(1), respectively, of the § 1910.23
general industry standard. Those subsections are the ones addressed by the Secretary and Film Allman in their post-
hearing briefs. In Exhibit J-2 (Joint Exhibit 2—Stipulated Points of Law), however, stipulated points ¶¶ 3, 4, and 7
refer to §§ 1926.23(c)(1) and (e)(1), subsections of the § 1926.23 construction standard. This is a clerical error (§
1926.23 states in its entirety, “First aid services and provisions for medical care shall be made available by the
employer for every employee covered by these regulations. Regulations prescribing specific requirements for first
aid, medical attention, and emergency facilities are contained in Subpart D of this part.” There are no subsections
(c)(1) and (e)(1) in the § 1926 standard.). The language of the stipulations reflects the language used and the hazard
addressed in §§ 1910.23(c)(1) and (e)(1). The Court sua sponte amends stipulated points 3, 4, and 7 of Exhibit J-2
to refer to §§ 1910.23(c)(1) and (e)(1), in conformance with the record. The parties are not prejudiced by the
amendment, which merely corrects clerical errors. Amendments, including sua sponte amendments, are permissible
where the amendment does not alter the essential factual allegations contained in the citation. Safeway Store No.
914, 16 BNA OSHC 1504, 1517 (No. 91-373, 1993) (amendment proper because it does not alter citation's factual
allegations), A. L. Baumgarten Construction, Inc., 16 BNA OSHC 1995, 1997 (No. 92-1022, 1994) (sua sponte
amendment after hearing permitted).
 Film Allman’s Employees Had Access to the Violative Condition
Film Allman stipulated its “employees were exposed to a fall hazard while working near
the unguarded edge on the west side of the Doctortown train trestle on February 20, 2014.” (Exh.
J-2, Stipulated Points of Law, ¶ 5) CSHO Vos estimated the distance between the section of the
Doctortown train trestle where the employees were located and the Altamaha River below was
25 to 30 feet (Tr. 728). From edge to edge, the trestle is approximately 13.5 feet wide. 18 The
distance between the rails is approximately 5 feet (Exh. C-7). Exhibit C-14 is a photograph
showing several employees standing on the trestle. An employee is shown standing at the foot of
the hospital bed that has been placed perpendicular to the tracks. The railroad tracks run
underneath the bed. The two legs at the head of the bed sit outside the right track and next to the
right bridge beam on the east side of the trestle. The two legs at the foot of the hospital bed sit
outside the left track and next to the left bridge beam on the west side of the trestle. The bed
entirely blocks the area between the east and west bridge beams. The employee at the foot of the
bed only has room to stand on the left bridge beam, which does not accommodate the length of
his foot. Large bolts rise above the tops of the bridge beams, creating uneven surfaces (Exh. C-
14). CSHO Vos stated the employee standing with the toes of his shoes overhanging the uneven
bridge beam was “about 20 inches basically from falling off the west side of the trestle to the
water below.” (Tr. 728)
Film Allman Knew of the Violative Condition
Film Allman stipulated it “knew or could have known its employees were working near
the unguarded edge of the west side of the Doctortown train trestle on February 20, 2014.” (Exh.
J-2, Stipulated Points of Law, ¶ 6) In Exhibit C-14, Randall Miller is standing in the center of
the railroad tracks at the side of the bed while the employee at the foot of the bed is standing on
the west bridge beam. Supervisors Hillary Schwartz and Mike Ozier were also on the trestles
and aware of the open-sided edge. Miller stated that “out in the middle there, there’s no side” on
the trestle (Exh. C-25, p. 144).
Item 1b
Item 1b of Citation No. 1 alleges Film Allman failed to provide adequate fall protection
to its employees working on the trestle: “East side of Doctortown Trestle, on or about February

18
CSHO Vos took measurements with a trench rod that was calibrated in feet and tenths of a foot, rather than feet
and inches.
20, 2014, employees were walking/working on a walkway platform on the east side of a train
trestle. The guardrails on the open side of the walkway were not the proper height to prevent
employees from falling off of the trestle.” Section 1910.23(e)(1) provides in pertinent part:
A standard railing shall consist of top rail, intermediate rail, and posts, and shall
have a vertical height of 42 inches nominal from upper surface of top rail to floor,
platform, runway, or ramp level. The top rail shall be smooth-surfaced throughout
the length of the railing. The intermediate rail shall be approximately halfway
between the top rail and the floor, platform, runway, or ramp. The ends of the
rails shall not overhang the terminal posts except where such overhang does not
constitute a projection hazard.
Film Allman stipulated to three of the four elements of the violation of § 1910.23(e)(1).
The Cited Standard Applies
Film Allman does not stipulate § 1910.23(e)(1) applies to the cited condition. Film
Allman’s rationale for disputing the applicability of § 1910.23(e)(1) appears to be ignorance of
its responsibility to comply with the requirements of the Act.
Film Allman had no knowledge on February 20, 2014 that there was an OSHA
standard requiring a minimum height for guardrails, or that the OSHA standard
would apply to the Doctortown trestle worksite, or that Film Allman would be
expected to make modifications to a bridge they didn’t own in order to be in
compliance with the standard. Nor could they be expected to know this.
(Film Allman’s brief, p. 43)
It is not the Secretary’s burden to establish an employer was aware of the requirements of
a specific OSHA standard (the Secretary must establish the employer was aware of the violative
condition). “The constitution does not require that employers be actually aware that the
regulation is applicable to their conduct.’ Willson III, 773 F.2d [1377,] 1387 [D.C. Cir. 1985)]
(quoting Faultless Div., Bliss & Laughlin Indus. v. Secretary of Labor, 674 F.2d 1177, 1185 (7th
Cir.1982) (emphasis in original)).” Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567,
572 (11th Cir. 1987).
Section 5(a)(2) of the Act states, “Each employer . . . shall comply with the occupational
safety and health standards promulgated under this Act.” Film Allman stipulated it was an
employer as defined by § 3(5) of the Act (“a person engaged in a business affecting commerce
who has employees[.]”). As a covered employer, Film Allman was responsible for complying
with OSHA standards addressing hazards to which its employees had access. “A company may
not, practically as a matter of policy, altogether ignore its known OSHA duties and then plead
ignorance when it is caught in violation of an OSHA regulation.” Georgia Elec. Co. v. Marshall,
595 F.2d 309, 320 (5th Cir. 1979). Film Allman had adequate notice of its responsibility to
comply with § 1910.23(e)(1) because the Secretary's interpretation is a straightforward reading
of that subsection.
Film Allman’s argument that the cited standard does not apply because Film Allman
could not have known it “would be expected to make modifications to a bridge they didn’t own
in order to be in compliance with the standard” is misplaced. “Under Commission precedent . . .
the focus of the Secretary's burden of proving that the cited standard applies pertains to the cited
conditions, not the particular cited employer.” Southern Pan Services Co., 25 BNA OSHC 1081,
1085 (No. 08-0866, 2014). An employer whose own employees are exposed to a hazard or
violative condition (an exposing employer) has a statutory duty to comply with a particular
standard even where it did not create or control the hazard. See Anning-Johnson Co., 4 BNA
OSHC 1193, 1198-99 (No. 3694, 1976) (consolidated) (holding that the exposure of a
subcontractor's “employees to a condition that the employer knows or should have known to be
hazardous, in light of the authority or ‘control’ it retains over its own employees, gives rise to a
duty under section 5(a)(2) of the Act[.]”).
Thus, even if Film Allman believed it could not “make modifications to a bridge they
didn’t own” without permission from the bridge owner, it still had an obligation to comply with
the standard, by providing an alternate means of fall protection or by prohibiting its employees
from accessing the zone of danger.
E]ach employer has primary responsibility for the safety of its own employees.
Simply because a subcontractor cannot himself abate a violative condition does
not mean it is powerless to protect its employees. It can, for example, attempt to
have the general contractor correct the condition, attempt to persuade the
employer responsible for the condition to correct it, instruct its employees to
avoid the area where the hazard exists if this alternative is practical, or in some
instances provide an alternative means of protection against the hazard.... In the
absence of such actions, we will still hold each employer responsible for all
violative conditions to which its employees have access.
Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1189 (No. 12775, 1975) (footnote omitted)
(emphasis added)
“[S]uch a requirement is consistent with Commission precedent requiring an employer to
detect and assess the hazards to which its employees may be exposed, even those it did not
create.” Associated Underwater Servs, 24 BNA OSHC 1248, 1251 (No. 07-1851, 2012). See
“Gregory N. Dale & P. Matthew Shudtz, eds., Occupational Safety and Health Law (3d ed. 2013,
Ch. 3.III) (‘OSHA must show that a condition that violates a standard existed. This element does
not require proof that the cited employer itself violated the standard, i.e., that the cited employer
created the violative condition; OSHA need prove only that a violative condition existed,
regardless of who or what caused it.’).” Southern Pan Services Co., 25 BNA at 1086 (emphasis
in original). An employer in Film Allman’s position still has an obligation to make reasonable
efforts to protect its employees from fall hazards.
Section 1910.23(e)(1) requires an employer to install guardrails with a vertical height of
42 inches on open-sided floors, platforms, runways, or ramp levels 4 feet or more above the
adjacent level. The east edge of the Doctortown trestle was open-sided and was 25 to 30 feet
above the Altamaha River at the location where Film Allman’s employees were located (Tr.
728). The Court determines § 1910.23(e)(1) applies to the cited conditions.
Film Allman Failed to Comply with the Cited Standard
Film Allman stipulated it “failed to comply with 29 C.F.R. § 19[10].23(e)(1) when the
open side of the walkway on the east side of the Doctortown trestle did not have 42-inch high
guardrails on February 20, 2014.” (Exh. J-2, Stipulated Points of Law, ¶ 7) Unlike the
unguarded west side of the trestle (where the left bridge beam marks the outer edge of the trestle
on the left side), a narrow walkway made of grated metal exists to the right of the right bridge
beam on the east side (Exhs. C-1, C-2, C-7, C-20). The width of the walkway is approximately 3
feet (Exh. C-7, C-9). Two lengths of wire cable form a top rail and intermediate rail at the outer
edge of the walkway (Exh. C-2a). CSHO Vos testified “the rails were not sufficient according to
OSHA regulations.” (Tr. 731)
Film Allman’s Employees Had Access to the Violative Condition
Film Allman stipulated its “employees were exposed to a fall hazard while walking or
working on the east side of the Doctortown train trestle on February 20, 2014.” (Exh. J-2,
Stipulated Points of Law, ¶ 8) CSHO Vos estimated the distance between the section of the
Doctortown train trestle where the employees were located and the Altamaha River below was
25 to 30 feet (Tr. 728). Exhibits C-11 and C-15, among other photographic exhibits, show
numerous employees walking and standing on the 3 foot wide walkway, next to the inadequate
wire cable rails.
 Film Allman Knew of the Violative Condition
Film Allman stipulated it “knew or could have known its employees were walking or
working on the walkway on the east side of the Doctortown train trestle on February 20, 2014.”
(Exh. J-2, Stipulated Points of Law, ¶ 9) In Exhibit C-14, Randall Miller is standing in the center
of the railroad tracks at the side of the bed while employees are standing or walking in plain view
on the walkway. Supervisors Hillary Schwartz and Mike Ozier were also on the trestle and
aware of the inadequate wire cable rails (Exhs. C-11 and C-15).
Based on the parties’ stipulated facts and stipulated points of law, as well as the record
evidence, the Court finds the Secretary has established Film Allman committed violations of §§
1910.23(c)(1) and (e)(1).
Film Allman’s Belated Infeasibility Defense
In its brief, Film Allman argues, “It was not feasible for Film Allman to modify the
trestle bridge structure[,]” (p. 39) and “[i]t would be infeasible, expensive, and impractical for a
small company such as Film Allman to modify the trestle bridge for such a short period of
work.” (p. 42) Commission Rule 34, § 2200.34, addresses Employer contests. Rule 34(b)(1)
requires the employer to file an answer with the Commission within 20 days after service of the
complaint. Rule 34(b)(3) provides, “The answer shall include all affirmative defenses being
asserted. Such affirmative defenses include, but are not limited to, ‘infeasibility,’ ‘unpreventable
employee misconduct,’ and ‘greater hazard.’” Rule 34(b)(4) cautions, “The failure to raise an
affirmative defense in the answer may result in the party being prohibited from raising the
defense at a later stage in the proceeding, unless the Judge finds that the party has asserted the
defense as soon as practicable.”
Film Allman failed to raise the affirmative defense of infeasibility in its answer. It did
not list the infeasibility defense as an issue in dispute in the parties’ Joint Pre-hearing Statement.
The Secretary lacked notice Film Allman was asserting the infeasibility defense and did not
present evidence to rebut it or address it in his post-hearing brief. The Court determines Film
Allman failed to timely raise the infeasibility defense. 19

19
Even if the Court were to determine Film Allman had timely raised the affirmative defense, Film Allman would
not prevail. In order to prove the affirmative defense of infeasibility, the employer must show: (1) the means of
compliance prescribed by the applicable standard would have been infeasible, in that (a) its implementation would
have been technologically or economically infeasible or (b) necessary work operations would have been
technologically infeasible after its implementation, and (2) there would have been no feasible alternate means of
protection. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-1167, 1994). The Commission expects
 Classification of the Violations
The Secretary has established Film Allman committed violations of § 1910.23(c)(1) and
(e)(1). He classified the violations as serious. Under § 17(k) of the Act, “a serious violation
shall be deemed to exist in a place of employment if there is a substantial probability that death
or serious physical harm could result from a condition which exists[.]” Film Allman stipulated
that, had an accident occurred on February 20, 2014, as a result of its employees working near
the east or west side of the Doctortown train trestle, “it could have resulted in serious bodily
injury or death to an employee.” (Exh. J-1, Stipulated Facts, ¶¶ 65, 69)
Based on Film Allman’s stipulations and the record evidence, the Court determines the
Secretary properly classified Items 1a and 1b as serious. Items 1a and 1b are affirmed as serious
violations.
CITATION NO. 2
Item 1: Alleged Willful Violation of § 5(a)(1)
The Secretary alleges Film Allman committed a willful violation of § 5(a)(1). Item 1 of
Citation No. 2 states,
Doctortown Train Trestle, on or about February 20, 2014, employees were
working from a live railroad trestle without any safety procedures established
such as securing the tracks from any type of train traffic in the area, or having a
plan that would allow ample time for everyone to exit the trestle with all of their
equipment and props. This exposed employees to a hazard of being struck by a
train traveling on the tracks.
One feasible means of abatement, among others, would be to: 1) obtain
permission from the railroad company to film on the trestle; 2) control train traffic
so that no trains would travel through while employees were working on the
trestle.
The elements of proof for a § 5(a)(1) (the general duty clause) violation differ from the
elements of proof for a § 5(a)(2) OSHA standard violation. Section 5(a)(1) of the Act mandates
that each employer “furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause death or serious

employers to exercise some creativity in seeking to achieve compliance. Pitt Des Moines, Inc., 16 BNA OSHC 1429
(No. 90-1349, 1993). Film Allman asserts “it would be infeasible, expensive, and impractical” to install an adequate
guardrail on the east side of the trestle, but adduced no evidence of either technological or economic infeasibility.
Film Allman also failed to adduce evidence it implemented an alternative protective measure, such as providing
employees with life preserver jackets or positioning an employee in a boat beneath the trestle (Tr. 406-407, 472,
550-551).
physical harm to his employees.” 29 U.S.C. § 654(a)(1). To establish a violation of the general
duty clause, the Secretary must show that: (1) a condition or activity in the workplace presented
a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to
cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially
reduce the hazard. Pegasus Tower, 21 BNA OSHC 1190, 1191 (No. 01-0547, 2005). In
addition, the evidence must show that the employer knew or with the exercise of reasonable
diligence could have known of the hazardous condition. Otis Elevator Co., 21 BNA OSHC
2204, 2207 (No. 03-1344, 2007).
As with Item 1a of Citation No. 1, Film Allman stipulated to all four elements of the
violation of § 5(a)(1).
Filming on an Active Train Trestle Presented a Hazard
Film Allman stipulated, “On or before February 20, 2014, working on a live train track
presented the hazard of being struck by a train. . . . [redacted], Second Camera Assistant, was
killed by the passing train and several other crew members were injured, some seriously.” (Exh.
J-1, Stipulated Facts, ¶ 61, 70)
Film Allman and the Film Industry Recognized Filming
on an Active Train Trestle Presented a Hazard
Film Allman stipulated, “On or before February 20, 2014, the film and television industry
[and] . . . Respondent recognized that working on a live train track presented the hazard of being
struck by a train.” (Exh. J-1, Stipulated Facts, ¶¶ 71-72).
Filming on an Active Train Trestle Was Likely to Cause Death or Serious Physical Harm
Film Allman stipulated, “Being struck by a train could result in serious bodily injury or
death to an employee . . . . . On February 20, 2014, Respondent’s employees were exposed to
the hazard of being struck by a train while filming Midnight Rider on the Doctortown train
trestle.” (Exh. J-1, Stipulated Facts, ¶¶ 73-74).
A Feasible Means Existed to Eliminate or Materially Reduce the Hazard
Film Allman stipulated, “One feasible means to abate the hazard of being struck by a
train is to obtain permission from the railroad company to film on the trestle in order to control
train traffic so that no trains will travel through while Respondent’s employees are working on
the trestle.” (Exh. J-1, Stipulated Facts, ¶ 78).
The means of abatement the Secretary recommends is both feasible and standard in the
film industry. As Location Manager, Baxter was familiar with the standard protocol when
planning to film on active railroad tracks. He had worked as the location manager on a previous
movie for which he secured permission from CSX to film on its tracks. He testified that at one
point approximately six CSX representatives were on set, which “was quite expensive also.” (Tr.
113) Baxter stated the movie company was not permitted to film until CSX held a mandatory
safety meeting with the company.
We, as a group, the assistant director, production manager -- I think we had a key
grip and maybe it was one of the working guys, transportation. There were about
seven people from our company who met with CSX at the location. And we went
through do's and don'ts. Anybody who's working on or around the tracks would
have to wear steel toed boots. You'd have to wear a vest so they can see you. You
can't go out there and do anything unless you need to go out there and do
something. You have to kind of explain that, because it's very carefully
monitored. And then they talk about what happens when a train comes. How
much time they're going to give us and where we have to move and how far we
have to back up to. And we can't come back until the representative from the
railroad is, "Okay. You can come back." And it was all laid out very carefully on
there and make sure we understood.
(Tr. 114-115) (emphasis added) 20
Film Allman Knew of the Hazardous Condition
Film Allman contends, “No one from CSX or Rayonier gave Film Allman any reason to
believe that they were filming in a place they weren’t allowed to be, or proceeding in an unsafe
manner” at the Doctortown trestle on February 20, 2014 (Film Allman’s brief, p. 25). The
statement with regard to CSX is patently false. A representative of CSX had emailed Film
Allman that morning stating Film Allman did not have permission to film on those railroad
tracks specifically (Exh. J-1, Stipulated Facts, ¶ 30). This email arrived approximately three and
a half weeks after another CSX representative emailed Film Allman, informing the film company
categorically “CSX does not permit filming on our property.” (Exh. C-24)

20
Despite stipulating to all the elements of a § 5(a)(1) violation, in its post-hearing brief Film Allman argues the
Secretary did not establish the feasibility element because “based on the available information, waiting to film until
such time as any known danger was confirmed to have passed, waiting until the only two trains expected had
already passed, waiting until they believed the tracks were, in effect, inactive due to a cessation of train passage was
a feasible method of abating the hazard of being hit by a train.” (Film Allman’s brief, pp. 25-26) This is nonsensical
and obviously untrue. CSX’s trainmaster testified the railroad tracks crossing the Doctortown trestle are part of one
of CSX’s busiest sections. On average, thirty-five trains a day, both scheduled and unscheduled, cross the
Doctortown trestle. CSX does not post a publicly available schedule for its trains. It was impossible for Film
Allman to wait “until such time as any known danger was confirmed to have passed.” The Court rejects Film
Allman’s argument.
 Film Allman claims it could not know CSX objected to its presence on the trestle (despite
the two refusals of permission in writing) because the first two CSX trains it observed prior to
the one that killed [redacted] passed without incident.
The expected two trains traversed the tracks when the crew was on the side of the
tracks, set up, and filming. . . . The film crew was in plain view of the passing
trains. They weren’t hiding from the trains. They weren’t disguising their
presence or what they were doing. In fact, the engineers and conductors testified
that they saw the film crew on the side of the tracks. . . . Neither of those trains
made any report to dispatch, or to anyone else, regarding the film crew’s presence
besides the tracks, nor were they concerned by the film crew’s presence or about
anyone being in danger of being hit by a train.
(Film Allman’s brief, p. 24) (citations to the transcript omitted)
This argument is untenable. The film company arrived at approximately 3:30 p.m. and
the accident occurred at approximately 4:30 p.m. The Doctortown trestle is a remote location.
Even if a crew member of one of the trains had reported the presence of the film crew to
dispatch, CSX reasonably could not be expected to respond to the Doctortown trestle in the short
period of time before the accident. Furthermore, Item 1 of Citation No. 2 refers specifically to
the film company’s presence on the trestle. At the time the first two trains passed by, none of the
film company’s members was on the trestle—they were at the sides of the railroad tracks. The
CSX employees who testified stated it was normal to see people by the side of railroad tracks as
they passed by and they would only report to dispatch if someone or something was “fouling the
tracks,” meaning a person or object was “pretty much within the edge of the cross ties” that a
train could hit as it passed (Tr. 77). Murray stated locomotive engineers or conductors generally
do not call in reports of people near the tracks. “If we reported every incident where we had
someone next to our track or even close to our tracks, you know, it would hinder railroad
operation. We have a lot of folks . . . taking pictures or next to our tracks or working close to our
tracks.” (Tr. 78)
Film Allman stipulated, “On February 20, 2014, Miller, Schwartz, Savin, and Sedrish
knew that Respondent did not have permission from CSX Transportation to film on the tracks or
Doctortown train trestle that traverses Rayonier property in Jesup, Georgia[, and] . . . did not
have anyone from CSX Transportation present on location to ensure no trains would come
through the work site while its employees were working on the trestle.” (Exh. J-1, Stipulated
Facts, ¶ ¶ 50, 76) Baxter also knew Film Allman did not have permission from CSX to film on
the tracks or trestle (Tr. 130-131). Miller and Savin had supervisory authority over Sedrish,
Schwartz, and Baxter. Sedrish also had supervisory authority over Schwartz and Baxter (Exh. C-
25, p. 48). In their positions as subordinates to Miller and Savin, Sedrish and Schwartz failed to
comply with the requirements of § 5(a)(1), as cited in Item 1 of Citation No. 2. Miller and
Savin’s knowledge of their subordinates’ noncomplying behavior is imputed to Film Allman.
Sedrish’s knowledge of Schwartz’s noncomplying behavior is also imputed to Film Allman.
“’When a corporate employer entrusts to a supervisory employee its duty to assure employee
compliance with safety standards, it is reasonable to charge the employer with the supervisor's
knowledge actual or constructive of noncomplying conduct of a subordinate.’” Mountain States,
623 F.2d [155,] 158 [(10th Cir. 1980)]. It is reasonable to do this because a corporate employer
can, of course, only act through its agents—as several of the above-cited cases have
recognized—and the supervisor acts as the “eyes and ears” of the absent employer.” ComTran
Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1317 (11th Cir. 2013).
Film Allman knew CSX had twice refused the company permission to film on its railroad
tracks and yet Film Allman instructed its employees to work on active tracks running across the
Doctortown trestle on February 20. Based on the parties’ stipulated facts and the record
evidence, the Court finds the Secretary has established Film Allman committed a violation of §
5(a)(1).
WILLFUL CLASSIFICATION
The Secretary classified the cited violation as willful. Film Allman’s challenge to this
classification is the primary focus of this proceeding. Film Allman’s state of mind is at issue as a
result of the willful classification.
“The hallmark of a willful violation is the employer's state of mind at the time of
the violation—an ‘intentional, knowing, or voluntary disregard for the
requirements of the Act or ... plain indifference to employee safety.”’ Kaspar
Wire Works, Inc., 18 BNA OSHC at 2181, 2000 CCH OSHD at p. 48,406
(citation omitted). [I]t is not enough for the Secretary to show that an employer
was aware of conduct or conditions constituting the alleged violation; such
evidence is already necessary to establish any violation .... A willful violation is
differentiated by heightened awareness of the illegality of the conduct or
conditions and by a state of mind of conscious disregard or plain indifference ....
Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶
30,046, pp. 41,256 57 (No. 89-433, 1993). This state of mind is evident where
“the employer was actually aware, at the time of the violative act, that the act was
unlawful, or that it possessed a state of mind such that if it were informed of the
standard, it would not care.” AJP Constr. Inc. v. Sec'y of Labor, 357 F.3d 70, 74
(D.C. Cir. 2004) (emphasis and citation omitted).
Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2091 (No. 06-1542, 2012).
Film Allman Contends Its Violation of § 5(a)(1) Was Not Willful
Film Allman argues the Secretary cannot meet his burden of proving intentional disregard
to the requirements of the Act or plain indifference to employee safety because the film company
reasonably relied on a third party’s assurance that only two trains were expected the day of the
accident. There are significant gaps in the record regarding the origins of the “two trains”
canard. At the hearing, Film Allman identified Rayonier’s Communications Manager as the
source of the misinformation, characterizing her as a star struck movie fan who overstated her
influence with CSX in order to ingratiate herself with a film company. Director Randall Miller
presented a vivid portrait of his first meeting with the Communications Manager after he arrived
at the Doctortown trestle site on February 20.
Miller: I met her shortly after getting out of the vans.
Q. It -- where the vans were parked?
Miller: Yeah.
Q. And did she say who she worked for?
Miller: You know, I don't -- I do -- yeah, she did say she worked for Rayonier but
I don't remember – I didn't know at the time whether she owned the property or
what her situation was.
* * *
Q. Did -- was she excited to meet the actors?
Miller: She was -- she was thrilled to meet the director. . . . She was thrilled to
meet the director. She said something about . . . She was thrilled to meet me. . . .
She was thrilled to meet me. She was thrilled to meet all the various crew and the
actors.
Q. Star struck kind of attitude?
Miller: Definitely was. . . . Definitely excited.
(Tr. 1083-1084)
Miller’s account at the hearing took place more than a year after the events of February
20, 2014. His description of this meeting and the Communications Manager’s fawning behavior
is contradicted by his testimony taken by OSHA on May 15, 2014, less than three months after
the accident, when he testified he did not meet Rayonier’s Communications Manager when he
arrived at the site:
Miller: Well, [Baxter and Sedrish] had gone out there a week or so before with
[Rayonier’s Communications Manager] who I didn't know. I didn't really know
 her. I never met her or anything, but she was the one that had been the
representative at Rayonier.
Q. Did you meet her out on the location the day of the accident?
Miller: I didn't meet her until after the accident. And I went up to her and I said –
I said, what the hell is this? You know? It's like that. I was like really upset.
Q. And what did she say?
Miller: I don't recall what she said. I was pretty much in shock.
Q. Okay. So Charley [Baxter] was working with [Rayonier’s Communications
Manager] and CSX?
Miller: Well, as far as I know, what the story was is that she was -- she – she had
-- she thought she had some -- it's hard because now I've seen e-mails afterwards,
you know? . . .But she had some ability to like, you know, make it all happen, you
know, because she was the -- she was the communications director there and she
had some past history with CSX.
(Exh. C-25, p. 188-189) (emphasis added)
Film Allman’s own management employees do not agree on the source of the “two
trains” information. Producer Jody Savin stated she first heard about the two trains from Baxter
on February 19 at Meddin Studios (Exh. C-29, p. 59). “I know that two trains were going down
the tracks because Charley told me the day before.” (Id. at 81) She stated she did not discuss the
expected two trains with Rayonier’s Communications Manager at the Doctortown trestle site on
February 20, but “after the second train went by I walked over to [Rayonier’s Communications
Manager] and I said, ‘So, that’s our two trains, right? And she . . . nodded to me and so I thought
we’re clear.” (Id. at 96).
UPM Sedrish could not specifically recall whether he heard the “two trains” information
from Baxter or from Rayonier’s Communications Manager (Sedrish deposition, pp. 54-58, 88-
89). In contrast to her colleagues, First AD Schwartz testified she cannot recall hearing any
information regarding two trains until she was actually on the Doctortown trestle on February 20,
the day she was supervising safety on the set.
Q. And at that point in time, when you went out onto the trestle to join Randy
[Miller] and Mike [Ozier], what was your understanding of what the train traffic
was going to be that day?
Schwartz: I don’t remember. But I remember, when we were on the trestle, [the
Assistant Location Manager] got on the radio and told me that the two trains that
we were expecting had not passed.
 Q. Okay. But before [the Assistant Location Manager] communicated with you
via radio, did you have any understanding at that point of what the train traffic—
the expected train traffic was going to be?
Schwartz: I don’t remember.
Q. Okay. Do you recall whether you had any information before talking with
[the Assistant Location Manager] on the radio about the number of –the number
of trains?
Schwartz: I don’t remember.
Q. Okay. Did you—do you recall whether you had any information about what
time the trains were going to be coming through?
Schwartz: I don’t believe I ever had any . . . information at that time.
Q. Did you have any information before talking with [the Assistant Location
Manager] about the direction of travel of the trains?
Schwartz: I don’t recall.
(Schwartz deposition, pp. 28-29)
Location Manager Baxter was the Film Allman employee who worked most closely with
Rayonier’s Communications Manager. In the numerous email exchanges with Baxter that Film
Allman adduced at the hearing, the Communications Manager makes no mention of “two trains.”
(Exhs. R-15 through R-20) Baxter did not testify she told him only two trains were expected that
day. Film Allman’s counsel did not ask Baxter during his cross-examination if Rayonier’s
Communications Manager told him only two trains were expected to cross the Doctortown
trestle on February 20 (Tr. 207-266). In his opening statement, one of counsel for Film Allman
stated, “We’ve taken a deposition of [Rayonier’s Communications Manager]. If the Secretary
doesn’t call her, I’m sure we’ll be calling her[.]” (Tr. 39) Neither party called Rayonier’s
Communications Manager to testify. Film Allman did not offer her deposition into evidence.
Even if Film Allman could trace the faulty “two trains” information to Rayonier’s
Communications Manager (which it has not), Film Allman could not rely on it reasonably. The
Communications Manager works for Rayonier, not CSX. Her job involves promoting Rayonier
in local media (Tr. 850). Film Allman argues it “reasonably relied on [Rayonier’s
Communications Manager] to have superior knowledge about the condition of the train tracks
crossing its property.” (Film Allman’s brief, pp. 29-30) Film Allman failed to adduce any
evidence establishing Rayonier’s Communications Manager had “superior knowledge” regarding
the train tracks or CSX’s train schedule. It simply was not reasonable for Film Allman to rely on
any representations a Rayonier public relations employee made with regard to CSX’s train
schedule. There is no evidence CSX authorized the Communications Manager to speak for it or
gave her access to its train schedule.
The absurdity of Film Allman’s argument is highlighted by its failure to inquire, upon
arrival at the Doctortown trestle site, whether any trains had passed by yet. This would appear to
be crucial information for a filming schedule premised on the “two trains” theory. If Film
Allman actually believed only two trains were scheduled to cross the Doctortown trestle on
February 20, 2014, it was incumbent upon one of the several Film Allman supervisors present
that day to inquire whether any trains had passed by the time the film company arrived at
approximately 3:30 in the afternoon. No one from Film Allman asked that question of the two
DSI guards who witnessed the earlier train and who were on the site from the time of the film
company’s arrival until after the accident occurred. Film Allman’s argument it relied on
information from Rayonier’s Communications Manager is without merit.
The “two trains” story appears to be a smokescreen concocted to afford Film Allman
plausible deniability with respect to the hazards to which it exposed its employees on February
20, 2014. Miller explained Film Allman’s purported plan when it arrived at the Doctortown
trestle site on February 20. “[L]et’s wait for the two trains to go by if there are going to be two
trains. If two trains don’t come by, then we’re not going out on that trestle. I’m not going out on
the trestle [until after two trains pass].” (Exh. C-25, p. 158)
The sincerity of this plan is suspect given Miller’s testimony about an earlier
conversation he had with Schwartz and Sedrish concerning the difficulty of scheduling Scene 14
around Hurt’s limited availability.
Hillary and Jay . . . were thinking that we were to go to this—this location in
Jesup and they were talking about the difficulty of the fact that William Hurt had
one week that we had contracted him for. And so it was a distant location so it
was going to be difficult in the middle of the day to drive to Jesup to do this—this
scene. . . . We had six days with him. So there was one extra day that we could
[go] somewhere. And so that was what was decided. I really wasn’t part of that.
It just showed up in a schedule that I saw.
(Tr. 1071)
In his post-hearing brief, the Secretary points out the shortcomings of Film Allman’s
continued reliance on its “two trains” theory.
It simply does not make sense that Respondent would have taken its lead actor, a
second actor, and at least 20 crew members to just sit at a distant location to wait
 and see if two trains go by. But, if that was the plan, one would expect that on
arrival at the site, someone would, at minimum, go ask [the DSI] security guards
[ ] who let the crew onto Rayonier’s property, if a train had come through before
the crew arrived. (Ex. J1 ¶ 34). However, there is no evidence Respondent
attempted any such inquiry. Had Respondent asked, it would have learned that a
train had passed within the last half-hour before the crew arrived. (Tr. at 854,
870). This lack of inquiry only underscores that at the time, Respondent did not
hold a genuine belief that only two trains were expected to traverse the trestle on
February 20, 2014. Respondent simply did not believe, at the time its employees
accessed the trestle, that no other trains would come down that track. Any belated
attempt to promote this theory at the hearing does not show that Respondent held
a plausible or reasonable belief that the tracks were safe to access. See General
Motors, 22 O.S.H. Cas. (BNA) at 1044 (affirming a willful violation where the
employer’s belief was neither “plausible nor reasonable”).
Second, Respondent’s assumption that the two trains would happen to traverse the
trestle only after it arrived at the work site is also objectively unreasonable and
not worthy of credence. See id. Respondent knew well in advance of February 20,
that it planned to film Scene 14 during the “magic hour,” between 4:00 and 6:00
p.m. (Schwartz Depo. at 78; see also Ex. J11). This was a creative decision that
had nothing to do with the expectation of train traffic. (Schwartz Depo. at 78).
And yet, Respondent did not seek out any information about what time the trains
would allegedly come through. (Schwartz Depo. at 33; Sedrish Depo. at 56). In
fact, on February 20, 2014, Respondent’s managers had no idea what the train
frequency was at the Doctortown trestle. (See Schwartz Depo at 89; Tr. at 1145).
(Secretary’s brief, pp. 46-47)
The Court finds the Secretary’s argument persuasive. Film Allman’s argument that it
reasonably relied on its mysteriously sourced “two trains” information is rejected.
State of Mind of Supervisory Personnel Imputed to Film Allman
The Court must determine whether the record establishes Film Allman, as a corporate
entity, had a heightened awareness of the illegality of its conduct and a state of mind manifesting
plain indifference to employee safety. It is not solely Miller’s state of mind that determines
whether the willful classification is warranted. The Court may impute to Film Allman the state
of mind of any supervisor who exhibited a heightened awareness of the illegality of the conduct
or conditions and a state of mind of conscious disregard or plain indifference to employee safety.
Branham Sign Co., 18 BNA OSHC 2132, 2134 (No. 98-752, 2000) (“The state of mind of a
supervisory employee ... may be imputed to the employer for purposes of finding that the
violation was willful.”).
“Knowledge” by a corporate entity is necessarily a fiction; the corporation can
only be said to ‘know’ information by imputing to it the knowledge of natural
 persons who serve as its agents.” Central Soya de Puerto Rico, Inc. v. Secretary,
653 F.2d 38, 39 (1st Cir.1981). See also Acme Precision Products, Inc. v.
American Alloys Corp., 422 F.2d 1395, 1398 (8th Cir.1970) (“knowledge of
officers and key employees of a corporation, obtained while acting in the course
of their employment and within the scope of their authority, is imputed to the
corporation itself”).
Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d Caterpillar, Inc. v.
OSHRC, 122 F.3d 437 (7th Cir. 1997).
The Court finds the evidence that Film Allman’s supervisory personnel had a heightened
awareness of the illegality of their conduct on February 20, 2014, is overwhelming. Film Allman
manifested plain indifference to the safety of its subordinate employees. The supervisors
knowingly provided misleading information to their subordinates, assigning them tasks that
required them to gather without CSX’s permission on active railroad tracks running across a
narrow trestle. The subordinate employees were unaware their supervisors did not know the
train schedule for that location or that they did not have an emergency exit plan.
Location Manager Baxter testified that any time a film production wants to film on
private property, it “would have to have a location agreement signed by the owner of the
property.” (Tr. 103) He explained that it was his responsibility “to represent the company that
I'm working for. And the companies that I work for in this industry provide me with a location
agreement that's been vetted through their legal. And then I'm obligated to get the owner of the
property to sign that agreement. So it's really -- if the owner doesn't want to sign the agreement,
then I would have to move on to another location.” (Tr. 104)
Baxter knew Film Allman needed permission from CSX to film Scene 14 because “they
owned the tracks. . . . We can’t go onto their property without their permission. . . . I mean,
there’s the legal aspect of it, but there’s also the safety. You have to have their cooperation so
you understand what might be coming down those tracks.” (Tr. 127)
Although Sedrish and Schwartz testified Baxter had indicated the February 20, 2014,
email from the CSX representative was not a definitive refusal of permission to film on its tracks
that day, Baxter unequivocally recognized the CSX email as a denial.
Q. “Unfortunately, CSX will not be able to support your request." What was your
understanding -- what was your takeaway from that email statement?
Baxter: That we didn't have permission to film there on that day.
Q. Well, it says "Not able to support your request." I mean –
 Baxter: Well, if they can't support our request then we can't film there. Because
to support our request would be to provide the safety personnel and the
information that we need, a schedule of the trains and direction and how many
and all of those things. We need -- we only could get that information from CSX.
And if they say that they can't support our request, then we can't get that
information, which means we can't film there.
(Tr. 131-132)
Despite this refusal, Film Allman determined to go ahead with its plan to depart from
Meddin Studios at approximately 1:30 p.m. and travel to the Doctortown trestle. Baxter
understood Film Allman was “going to go down to Rayonier property, which they had
permission to be on, and that they were going to wait until they felt like they had the opportunity
to film on the tracks and-- and do it without permission.” (Tr. 136) Film Allman planned to
steal a shot.
Baxter stated that based on the February 20, 2014, email from CSX, he did not
accompany Film Allman’s employees to the Doctortown trestle “[b]ecause we didn’t have
permission. . . . I knew they were going to go onto CSX property and I didn’t want to be a part
of it. I thought it was wrong. I have a reputation to uphold. And I just said, ‘I’m not going
because we don’t have permission. I don’t want to participate in that kind of behavior.’” (Tr.
137) Baxter’s claim is undermined somewhat by a text exchange with Rayonier’s
Communications Manager that occurred on February 19, 2014, at 7:07 p.m., more than fifteen
hours before he received the email from CSX denying permission to film on its railroad tracks.
It indicates he had decided to skip the Doctortown trestle shoot even before CSX emailed its
denial of permission to access its tracks.
Hello I just emailed you all of the insurance requests
Thx again
Charley
Awesome. Thanks!! Sorry I won’t get to see you tomorrow.
I’m trying to make it. . just a little swamped … wish all the locations were as
pleasant to deal w/as you
Thank you
(Exh. R-22)
Regardless of his reason for not going to the Doctortown trestle, Baxter did not tell cast
and crew members, who were not privy to the CSX email, that CSX had denied Film Allman
permission to film on the railroad tracks. He testified he did not believe they were in danger
because he had “a certain amount of respect and confidence in Jay Sedrish and Randy and
Hillary, that they wouldn’t do anything to put anybody—so I felt there was proper adult
supervision that would have been there. And I didn’t—no, I did not have a fear about anybody
getting hurt.” (Tr. 138) His confidence was misplaced.
Film Allman made the conscious decision to proceed with its plan to film Scene 14 at the
Doctortown trestle. Having been explicitly denied permission by CSX to do so, Film Allman
knew it was trespassing. Film Allman also knew the train traffic would continue as scheduled
and that schedules are not publicly available. Under these circumstances, Film Allman might be
expected to increase its safety precautions. Instead, Film Allman compromised industry safety
standards at virtually every stage of the location filming. The film company had already failed to
conduct the customary tech scout of the location, which might have provided Miller and the
department heads the opportunity to realistically assess the risks associated with filming on the
site.
Sedrish and Schwartz decided not to attach Safety Bulletin # 28 to the February 20 call
sheet. This was not a mere oversight. The Key Second AD asked both Schwartz and Sedrish if
he should attach the bulletin and both told him no (or in Sedrish’s case, “No, no, no.” (Sedrish
deposition, p. 97)). This decision denied Film Allman’s employees access to relevant safety
information, including ¶ 14:
Do not place any objects on the rails, switches, guardrails or other parts of the
track structure. If the performance of any of these activities is required for
production purposes, specific permission must be obtained from the designated
railroad representative and additional safety precautions may be required.
(Exh. C-28, p. 3)
First AD Schwartz did not hold a safety meeting prior to filming at the Doctortown trestle
site. Safety Bulletin # 28 mandates that before filming a scene involving rail work, a film
company “in conjunction with the railroad representative, will conduct a safety meeting with all
involved personnel to acquaint cast and crew members with possible workplace risks.” (Id. at p.
1)
There was no medic at the site. Film Allman knew it was going to a remote location
where its employees would be working over a river on an antebellum railroad trestle on active
tracks. Miller could provide no plausible explanation for the absence of the medic that day.
[W]e generally always have a medic. We had a medic hired because we had a
medic at the production meeting the week before, was at the production meeting. I
 don't really know why there was not a medic there. I can't say why. In retrospect
I'm sort of surprised there wasn't a medic there, but we had hired a medic for the
shoot. He came to the production meeting[.]
(Exh. C-25, p. 167)
Film Allman did not have an emergency exit plan in the event of an unexpected train.
First AD Schwartz, who was in charge of safety, testified she did not know until she was on the
trestle that only two trains were supposed to pass. She did not know how long the employees
had to clear the trestle in the event of another train and the information radioed to her (“sixty
seconds”) appears to have been pulled out of thin air. She did not explain the exit “plan” to
employees until they were already on the trestle and then did so only in response to a question.
Film Allman, disastrously, did not have a procedure in place to attend to the hospital bed
blocking the trestle between the bridge beams. Film Allman’s utter lack of forethought in
formulating a coherent emergency exit plan is mystifying.
The Secretary notes, “At every possible point that Respondent could have provided
valuable information to its employees regarding their working conditions and the known hazards
at the trestle location, it chose, instead, to obfuscate the actual conditions.” (Secretary’s brief,
p.42) The most egregious failure in this regard is Film Allman’s decision to conceal from its
employees that they were on active railroad tracks without CSX’s permission. Film Allman
deprived its employees of accurate information regarding the extreme dangers to which they
were exposed.
Film Allman contends it could not have manifested plain indifference to employee safety
because supervisors Miller, Schwartz, and Ozier were also on the trestle and they would not
knowingly have placed themselves in a hazardous situation. The Court rejects this argument.
Baxter explained the location department sometimes joked a film company needs adult
supervision.
It's me or one of my assistants. It's to make sure that we, as a company, kind of do
what we said we were going to do and stay within the bounds of where we said
we were going to be. And the employees and the enthusiasm and energy that's
usually created with a film is similar to tunnel vision. To -- I like to sometimes
call it like a bird dog. They focus on their job and they really don't pay attention
to anything else. And you need somebody who's a little bit more objective to keep
them out of the road, be aware of traffic, to not go into property that they don't
have permission to go into. It's -- it's a term of endearment.
(Tr. 107-108)
 Whether the presence of the supervisors on the trestle resulted from tunnel vision, bird
dog concentration, or lack of adult supervision, they were plainly indifferent to their own safety
as well as to that of their subordinates. Each supervisor has an obligation to expand his or her
focus beyond merely completing a task and ensure the task is completed safely. A supervisor
must anticipate predictable hazards. The injuries to the supervisors’ co-workers and the death of
[redacted] were not the results of a freak accident—they were the entirely predictable
consequences of working on active tracks without the railroad owner’s permission.
Film Allman’s cast and crew members relied on their supervisors to ensure safe working
conditions. The cast and crew members entrusted their continued wellbeing to the management
personnel who had authority over them. The Key Set Costumer became aware for the first time
the film company was working on active railroad tracks when the first train since the film
company’s arrival passed. Even then, she expressed confidence in Film Allman’s supervisors.
When asked if hearing that a third train may be coming evoked a reaction from her, she stated,
Not one of alarm because, you know, my thought was that we were on live tracks
so of course there would possibly be a third train. I had no idea that that third train
was so close. It -- it did not cross my mind that the third train would even come
when we were there. But I had a safety that [the Second Second AD] was
obviously in touch with somebody who was aware of the -- of the train schedules.
So, you know, there was an assurance that we were at least in the loop. I had no
idea that we weren't in the loop completely.
(Tr. 553)
At one point in Schwartz’s deposition, the Secretary asked, “[Y]ou didn’t tell any of the
crew members that they didn’t have to participate in that shoot if they didn’t want to?” To which
Schwartz replied, “No. But I didn’t tell them they had to participate either.” (Schwartz
deposition, pp. 55-56) It is disingenuous to assume crew members filming on location would
inform their supervisors they did not want to participate in an assigned task. Given the
hierarchical nature and departmentalization of a film company, it is unrealistic to expect
subordinate employees to give voice freely to their safety concerns. Sedrish acknowledged
raising safety concerns could cause problems for a below-the-line crew member. “In general,
you don’t want to get a reputation as a troublemaker.” (Sedrish deposition, p. 78) Several of the
witnesses stated they became uneasy with the working conditions on the trestle but were
reluctant to raise their concerns to their supervisors. The Key Grip testified he and the other
employees gradually realized they were at risk.
 It was kind of -- in a way it was almost kind of casual talk amongst the crew and
with Mr. Hurt as well. And basically that was, you know, when people were
asking as far as, you know, what are we supposed to do and what's going to
happen if something happens, so to speak. And that's kind of when, I guess, we
realized that it's, you know, maybe we're not really in the right place, if you know
what I'm saying.
(Tr. 407)
The Key Set Costumer stated she found it disconcerting when Schwartz radioed the
Second Second AD to ask if it were possible a third train may pass by. “But I did think . . .
when I heard her request the train schedule[,] I thought a good time to have known the train
schedule -- a good time to know the train schedule would have been before we got there. That
was my thought when she made that request. So I -- I have a lot of guilt that I didn't speak up and
express what was going on in my head.” (Tr. 554)
The Hairstylist expressed similar qualms. She stated she felt unsafe when she first
ventured out onto the trestle and that she regretted not speaking up about it. When asked why
she did not, the Hairstylist replied, “You know, I had just been there, like, two days. So I'm just
starting the job. And just the fear of losing a job or being a troublemaker, you know, and a
person that causes problems. You know, and you don't want to be that person. And I regret not
saying anything because of what I may have felt. And I still have to carry that with me.” (Tr.
185)
Significantly, Hurt was the only employee who questioned Film Allman’s assurances
only two trains were expected and the film company would have sixty seconds to clear the
trestle. As the production’s lead actor, he was not subject to the same economic realities and
power dynamic as the below-the-line crew members. Even so, Film Allman’s supervisors did
not seriously address his safety concerns.
The onus was not on Film Allman’s subordinate employees to opt out of working
conditions which they believed were unsafe. “After all, ‘[r]esponsibility under the Act for
ensuring that employees do not put themselves into any unsafe position rests ultimately upon
each employer, not the employees, and employers may not shift their responsibility onto their
employees.’ Secretary of Labor v. V.I.P. Structures, Inc., 1994 WL 362276, *3 (O.S.H.R.C.).”
Caterpillar Inc. v. Occupational Safety & Health Review Comm'n, 122 F.3d 437, 441 (7th Cir.
1997).
 Film Allman’s original transgression was trespassing on the Doctortown trestle to steal a
shot. But at several different stages supervisors could have increased precautions that may have
provided some measure of protection to the employees. The supervisors of Film Allman had the
authority to step in and halt the filming on the trestle (Exh. J-1, Stipulated Facts, ¶¶ 36-46).
Although Schwartz, as First AD, was designated as the person in charge of safety on the set, she
shares responsibility with Miller, Savin, and Sedrish for the events of February 20. Miller,
Savin, Sedrish, and Schwartz were all present at the Doctortown trestle location and all knew the
film company was trespassing on active tracks with no train traffic control. Yet they failed to
devise or even discuss an emergency exit plan prior to instructing the cast and crew members to
set up on the trestle. This collective failure placed the unsuspecting employees on a narrow
trestle above a river in winter. As the train approached, the sections of the collapsed bed strewn
across the railroad ties exacerbated the already precarious footing on the trestle, creating tripping
hazards. The crew members were required to maneuver past the obstacles on the trestle while
encumbered with equipment. The quickest way to safety was moving towards the onrushing
train.
Film Allman’s cumulative choices to ignore CSX’s denial of permission to film on its
tracks, forsake standard safety protocols, and withhold crucial information from its subordinate
employees reflect plain indifference to employee safety. This indifference resulted in serious
injuries to a number of employees and, most grievously, the death of [redacted].
The Court finds Film Allman’s violation of § 5(a)(1) is properly classified as willful.
PENALTY DETERMINATION
The Commission is the final arbiter of penalties in all contested cases. “In assessing
penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give
due consideration to the gravity of the violation and the employer’s size, history of violation, and
good faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity
is a principal factor in a penalty determination and is based on the number of employees
exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”
Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).
Film Allman employed approximately ninety employees on February 20, 2014. It has no
history of OSHA inspections (Tr. 749-750). The Court does not credit Film Allman for good
faith based on the awareness of its management personnel that the film company was trespassing
when it instructed its employees to work on the Doctortown trestle on February 20, 2014. Gen.
Motors Corp., CPCG Okla. City Plant, 22 BNA OSHC 1019, 1048 (No. 91-2834E, 2007)
(consolidated) (giving no credit for good faith when management tolerated and encouraged
hazardous work practices).
The gravity of Item 1a of Citation No. 1 is high. CSHO Vos described the risks to which
Film Allman’s employees were exposed on the west side of the trestle where no guardrails
existed.
[T]he potential was high rate that an accident could occur. And that was based on
the employee having to stand on such a small area and also the bolts that were
going through -- the bolt went through the wood holding it into place were
potential trip hazard for someone who was trying to carry material or walking
could trip over them and cause them to fall off.
(Tr. 731-732)
Twenty to twenty-three employees were exposed for approximately one hour to a 25 to
30 foot fall into the Altamaha River. Film Allman took no precautions against injury.
Item 1b of Citation No. 1 addresses the inadequate cable guardrails on the eastern edge of
the trestle’s walkway. The number and exposure of employees for Item 1b are the same as Item
1a, but the Court finds the gravity of the violation is moderate. CSHO Vos stated, “[T]here were
rails in place so somebody could hold on to to prevent them from falling off. So there was going
to be lesser probability [an accident could occur].” (Tr. 732) At least three employees testified
they clung to the cables as the train rushed by them (Tr. 183-184, 319, 410-411).
The Court assesses a grouped penalty of $4,900.00 for Items 1a and 1b of Citation No. 1
The gravity of Item 1 of Citation No. 2 is of the highest order. Twenty to twenty-three
employees of Film Allman were working on active tracks on a train trestle without accurate
knowledge of the train schedule. Film Allman did not formulate an emergency exit plan prior to
assembling its employees on the trestle and the impromptu safety information it did provide them
was incorrect. Three of Film Allman’s management employees were convicted of criminal
trespass and involuntary manslaughter for their conduct on February 20, 2014.
The Court assesses the maximum penalty of $70,000.00 for Item 1 of Citation No. 2.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Fed. R. Civ. P. 52(a).
 ORDER
Based on the foregoing decision, it is hereby ORDERED:
1. Items 1a and 1b of Citation No. 1, alleging serious violations of §§ 1910.23(c)(1) and
(e)(1), are AFFIRMED and a grouped penalty of $ 4,900.00 is assessed, and
2. Item 1 of Citation No. 2, alleging a willful violation of § 5(a)(1), is AFFIRMED and a
penalty of $70,000.00 is assessed.
SO ORDRED.

                                                               /s/ Sharon D. Calhoun_____
                                                              SHARON D. CALHOUN
                                                              Judge

Date: September 28, 2015
Atlanta, Georgia