By Adam R. Young, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA may refuse to allow its compliance officers to testify in civil tort proceedings.

In a personal injury action (associated with an accident that resulted in an OSHA inspection), a trucking company sought to compel the deposition testimony of two OSHA compliance officers because the accident was the genesis of the tort litigation.  The plaintiff sought to recover for injuries allegedly sustained by the an individual who “was working on a traffic light in a bucket above traffic … when a tractor trailer … struck the bucket following which [the individual] fell from the bucket to the ground.” Watsontown Trucking Co. v. U.S. DOL, 26 OSHC 2166 (S.D.N.Y. Jan. 17, 2018).

The District Court explained that OSHA had determined that “one of the chief causal factors of the accident [was] the lack of warning devices” surrounding the raised bucket in which the individual was working.  The trucking company served subpoenas on OSHA’s compliance officers that conducted the inspection, directing them to appear for depositions.  OSHA objected and refused to allow its compliance officers to be deposed.

OSHA argued that its obligation only required it to “weigh the party’s need for the testimony [or documents] against the adverse effects on [OSHA’s] concerns,” which include “centralizing the dissemination of information of the agency (e.g. restricting investigators from expressing opinions on policy matters), minimizing governmental involvement in controversial matters unrelated to official business and avoiding the expenditure of government time and money for private purposes.”

The Court reviewed OSHA’s denial of the deposition request because it was a “final agency action for which there is no other adequate remedy,” and therefore was ripe for judicial review. 5 U.S.C. § 704.  The Court held that OSHA’s denial of the deposition testimony was “not based on impermissible considerations, was not ‘arbitrary [or] capricious,’ and did not violate the APA.”

Accordingly, this case upholds OSHA’s right to refuse to allow its compliance officers to testify in civil proceedings.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.