‘Midnight Rider’ OSHA Case: Film Allman “Misrepresented” Facts Repeatedly, Judge Ruled

Image courtesy Jones family/Patricia Leon

EXCLUSIVE: The Occupational Safety and Health Review Commission Judge Sharon D. Calhoun found Film Allman to have repeatedly misrepresented the facts in court and demonstrated a “plain indifference to the safety of its subordinate employees” of “the highest order” on the set of Midnight Rider which resulted in the death of Sarah Jones and the injury to several others.

In the most detailed account yet of what happened behind the scenes, the OSHA hearing and Calhoun’s subsequent ruling (read it here) — acquired through a Freedom of Information Act request by Deadline — exposed what happened when and by whom on the days leading up to the February 20, 2014 incident on the Doctortown train trestle in Georgia. Calhoun found that Film Allman “compromised industry safety standards at virtually every stage” of filming and labeled statements made by filmmaker Randall Miller and some supervising crew as “misrepresentation,” “contradictory” and “patently false,” their actions as absurd and lawyers’ arguments as “nonsensical” and “obviously untrue.”

Randall Miller Jody Savin Midnight RiderFilm Allman was the production company set up by director/producer/co-writer Miller and his wife, producer Jody Savin, to make the Gregg Allman biopic.

Court records obtained by Deadline show that attorneys for Film Allman as well as First Assistant Director Hillary Schwartz also fought vigorously against OSHA behind the scenes. Film Allman objected to witness statements taken by OSHA; argued to try to keep witness testimony out of the hearing; argued to keep the depositions of cinematographer Michael Ozier and unit production manager Jay Sedrish and Schwartz out of court saying that they were no longer employees; and it also objected to witness testimony of OSHA’s compliance and safety investigator John Vos who interviewed Schwartz and location manager Charley Baxter after incident.

Schwartz fought her subpoena to appear before the OSHA judge saying that her probation prohibited her from leaving the state of California, that she shouldn’t have to go because she resides over 100 miles from the hearing site, and that they “failed to tender mileage and fees” for her. Then Film Allman objected to the Court’s order permitting the secretary to take the depositions of Schwartz and Sedrish.

Despite all this, the hearing went through and in the end, the OSHA Review Commission judge ruled against the ill-fated Midnight Rider production company on Sept. 16th, upholding serious safety violations and making them pay a $74,900 fine. Jones, 27, was killed and other crew members injured (some seriously) when Miller put his crew onto live railroad tracks to “steal a scene.” And those on the crew were kept in the dark that they were on the tracks illegally.

Midnight Rider - Train Trestle Altamaha RiverThe judge found that the “supervisory personnel” of Midnight Rider were Miller, Savin, Sedrish, Schwartz, Ozier, production designer Melissa ‘Missy’ Stewart, and Baxter. The hearing and subsequent ruling paints some of the supervising film crew as lying to their own employees, to the owner of the train tracks (CSX), and then finger-pointing to others to place blame after the tragedy.

Calhoun’s ruling followed what consisted of a four-day mini-trial in March and April and then subsequent depositions in May. It culminated with a guilty ruling of “one willful and one serious safety violation” in the on-set death and injuries. The case was known as Secretary of Labor Thomas Perez vs. Film Allman, LLC.

Further, the following is what the court documents revealed:

Midnight Rider‘s budget was about $5M and Film Allman hired 40 actors. William Hurt, who was to portray rocker Gregg Allman, was only available for a week of prep and a week of shooting, “the first week of shooting, five days,” Schwartz said under oath. So they had to film the scenes with him first.

The screenplay initially featured a scene involving the brother Allman riding together on a motorcycle. When they are stopped by street construction, they decide to circumvent the obstacle by riding down railroad tracks. To get permission for the motorcycle scene on railroad tracks, location manager Baxter contacted a rep of CSX but — citing safety concerns — the rep denied them access. The scene was then re-written by Miller and Savin so that the brothers ride through woods rather than on the tracks.

Midnight Rider Sarah Jones CSXThe first scene that the filmmakers were going to shoot was Scene 14, which was a dream sequence with a close-up of Hurt who portrayed the older Gregg Allman. Miller said that he believed Scene 14 would last “thirty seconds max” in the completed film. The scene reads, in part:

He opens his eyes, disoriented, and looks around:

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 (sic). On the opposite side he see the silhouette of a person, long hair rustling in the breeze.

They planned to film Scene 14 between 4 PM to 6 PM because it was “the magic hour and the light is quite pretty at that time,” according to Miller. This scheduling decision was made by Miller and Ozier “and had nothing to do with scheduling around expected train traffic,” Calhoun wrote in her ruling.

The Doctortown train trestle location was found by a Film Allman employee who performed a Google search. Baxter then contacted Rayonier seeking access to that particular trestle. Rayonier’s Communication Manager agreed to meet Baxter, Schwartz, Ozier, Sedrish and Stewart at one of the gates on the Rayonier’s fenced property and then take them to see the trestle. However, once there, she informed them that CSX owned the tracks.

A year after the fact, Miller testified in court that the Communications Manager was basically a starstruck movie fan. “She was thrilled to meet the director … she was thrilled to meet me … she was thrilled to meet me. She was thrilled to meet all the various crew and the actors.”

However, Calhoun said Miller’s account at the hearing “is contradicted by his testimony taken by OSHA on May 15, 2014,” where he stated about the Communications Manager: “I didn’t meet her until after the accident.”

The next problem: The production team did not conduct a tech scout of the location. And that was decided rather than pay the $20 to $40 an hour. It was not done so they could save money. Miller testified that “in retrospect, yeah, we should have done a tech scout on that one because what this is costing and everything of course, but unfortunately hindsights’ 20/20 and everything. It was probably a financial reason we didn’t go there.”

Hillary Schwartz mug shotFirst AD Schwartz and UPM Sedrish were responsible for approving the call sheet prior to the shoot and they both declined to attach the safety bulletin about railroad safety (Safety Bulletin 28) on February 20, the day of the incident. Under the supervision of Schwartz, the Key Second Assistant Director prepared the call sheet for that day. He asked specifically if he should attach copies of the working on railroad Safety Bulletin 28 to the call sheets and Schwartz said no. But then she reconsidered and told him to ask Sedrish.

Jay SedrishSedrish testified under oath in the hearing that he 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. I don’t like to put a bunch of attachments on the call sheet.” He told the Key Second AD to put the safety bulletins in a stack somewhere at Meddin Studios so they were there if crew members wanted to take one.

Baxter, however, said that he was very familiar with Safety Bulletin 28 because, “Other films that I worked on, these 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 that everybody stays safe.”

Judge Calhoun took Miller to task about that particular point, writing in her ruling: “Miller, who is a member of the DGA and who has worked in the film industry for more than twenty-five years, stated that he was unfamiliar with” the safety bulletin. In fact, Miller said he had never seen it before and have never looked at the safety section of the DGA’s website.

Another lie: Six days prior to the shoot — on February 14 — Baxter had sent an email to CSX asking for permission to shoot on the tracks. In the email, Baxter wrote that they would only take 15 people to the track and only five of those would need access to the tracks. “Film Allman,” wrote Calhoun in her ruling, “purposely misrepresented the number of employees it planned to have on the tracks.” In reality, it was 20-23 employees on the tracks.

Baxter told Sedrish before he wrote the email to CSX that clearly it was going to be more than five. Sedrish told Baxter, ‘No. If you want to get permission, it has to be small.’ So that’s what we sent,” Sedrish testified.

It was noted by Judge Calhoun that Sedrish had supervisory authority over Baxter and Schwartz.

Baxter also wrote to CSX in that email: ‘We will not be attaching anything to the tracks or ties.” He wrote that Rayonier had “embraced our film” and he also asked to meet with the CSX Safety Inspector to explain their request in detail. Baxter would later say under oath that he knew that the movie company was not permitted to film until CSX held a mandatory safety meeting with the company because of a previous shoot that he secured permission from CSX to shoot on their tracks.

“Anybody’s 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 … 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,” he said under oath. “And we can’t come back until the representative from the railroad is, ‘Okay. You can come back.”

Another lie: Not only did they misrepresent the number of employees, Calhoun duly noted that “Film Allman also misrepresented the location of the railroad tracks on where it wanted to film Scene 14. Film Allman stated, ‘The site we’re requesting is just south of the Doctor Town (sic) trestle.” It wasn’t south of the tracks, the site they wanted was on the tracks.

Baxter was denied the request to film there via an email from CSX on the day the shoot with the train company saying that it “couldn’t support” their request. Baxter then forwarded that email to the email addresses of Miller, Savin, Sedrish, Schwartz, Stewart and his assistant location manger. He also said he discussed the email with Sedrish, Schwartz and Stewart that morning.

Baxter said under oath that he told them that they had no permission to film on the trestle. “Well, if they can’t support our request, then we can’t film there,” he told the court in testimony. “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.”

Sedrish said that prior to receiving the email from CSX, they had “some vague” discussions with his colleagues about what to do if they were denied permission. He asked about stealing the shot, cheating the shot (making it look like the actors were places where they were not) or if it could be written out. He said that “nobody liked that idea.” But then under oath, Sedrish couldn’t remember who that “nobody” was that he was referring to … except for Stewart. Maybe.

Judge Calhoun noted that Miller and Savin had supervisory authority over Sedrish, Schwartz and Baxter.

Despite being told no by CSX, they went to the Doctortown trestle location anyway. Well, all but Baxter. He sent his assistant. Baxter said in court that he wasn’t going to the location that day because “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.’ ”

However, Judge Calhoun also said that Baxter’s claim was “undermined” by his own hand — a text exchange he had with Rayonier’s Communications Manager that occurred the night before the shoot where he said he might not be able to make the shoot. Baxter made that statement, Calhoun pointed out, even before CSX denied their request to film there.

“Regardless of his reason for not going … 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 as he stated: he had ‘a certain amount of respect and confidence in Jay Sedrish and Randy (Miller) and Hillary (Schwartz), 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.’ ”

Calhoun said: “(Baxter’s) confidence was misplaced. Film Allman made the conscious decision to proceed with its plan … Film Allman knew it was trespassing. Film Allman also knew the train traffic would continue as scheduled and that schedules are not publicly available … 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.”

How did they know that the train schedules were not publicly available? Because Miller, Sedrish and Schwartz testified that they learned the TSA had prohibited them from being available since 9/11. And Schwartz and Sedrish also testified that they learned this after the site visit made Feb. 7th to the Doctortown trestle — they knew that the CSX train schedule was not available for those tracks.

Another lie: When they arrived at the location to shoot Scene 14, the Rayonier Communications Manager opened the gates and gave them access to the area. Film Allman contended in its argument in court that “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.”

However, the Judge said, the statement with regard to CSX “is patently false.”

CSX Midnight Rider“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. 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,” Calhoun wrote.

In addition, there was no discussion about safety with the crew — from anyone. There was also no medic on set. “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,” the Judge wrote. “Miller could provide no plausible explanation for the absence of the medic that day.” In fact, Miller said during the hearing that he was “sort of surprised” that there wasn’t one on set.

Miller said he was also was surprised by the location, saying he saw the physical tracks for the first time on the first day of shooting February 20th. Ozier and Schwartz said that the director had originally planned to film the scene with the hospital bed in the middle of the trestle, but upon arriving, Miller testified, “It was a lot bigger or whatever than I imagined … I was scared to go out there .. when 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.” There was a 25- to 30-foot drop to the Altamaha river below.

Schwartz failed to hold any kind of safety meeting despite knowing that they were shooting on live train tracks. They didn’t tell their own crew about that, or even that they were going to actually film a full scene. In fact, the Key Grip testified (as did another member of the crew) that he thought they were only going to do a camera test.

So they got to the location and proceeded to set up to shoot, first on the east side of the tracks. Ozier and Miller began filming shots of Hurt in the hospital bed on that east side. Then two trains passed the crew within 15 to 20 minutes of each other.

The B Camera Operator used his cell phone to try to take video of the first train “because I was kind of alarmed how fast it was going and how close we were.” He couldn’t get it out in time so took video of the second train instead. “It was moving remarkably fast and was really — you know the wind coming off the train was very strong,” he said.

Film Allman, however, also misrepresented that to the court. In its post-hearing brief, it stated: “Two trains went by. The trains appeared to be traveling at a slow or moderate speed.”

The Key Set Costumer said that she didn’t know that they were going to work on live tracks until they arrived at the location, but even then she expressed confidence in her bosses. She wasn’t alarmed, she said, because she thought they were aware of the train schedules. But then something happened to make her think otherwise.

Schwartz radioed the Second Second AD to ask if it were possible that a third train might pass by. “I thought a good time to know the train schedule would have been before we got there,” said the Key Set Costumer. “That was my thought when she (Schwartz) made that request. So I — I have a lot of guilt that I didn’t speak up …”

After the second train passed, Miller walked onto the tracks, seeing those tracks for the first time in person. Even though he saw the spaces between the slats were precarious enough to scare him, he proceeded with setting up the shot. The Gaffer helped carry the hospital bed onto the tracks and said under oath that the bed was “heavy … 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 steps as we were going out.”

Midnight Rider - Railroad TracksThe hospital bed was placed perpendicular over the tracks about 100 feet in from the end of the trestle. Miller knew that there were no sides to the trestle as did Schwartz and Ozier, the Judge pointed out. In fact, there were only wires on one side.

In fact, Calhoun said, the left bridge beam created uneven surfaces and it didn’t even accommodate the length of someone’s foot. Still, Miller and Ozier went forward with the shot, even though the bed entirely blocked the the area between the east and west bridge beams.

Midnight Rider - Grate Measurement“Film Allman, disastrously, did not have a procedure in place to attend to the hospital bed blocking the trestle between the bridge beams,” Calhoun wrote in her decision. “Film Allman’s utter lack of forethought in formulating a coherent emergency exit plan is mystifying.”

When Miller got on the bridge that’s when others — such as camera assistant Jones — began moving accessories and gear. The camera crew had two cameras, a case of lenses, and a bag of accessories that were taken onto the trestle.

Crew members said they were told repeatedly by Schwartz and the assistant location manager that only two trains were scheduled to cross the trestle. However, after the fact, no one — neither Miller nor Savin nor Sedrish — could remember the source of the information about the two trains. Savin pointed to Baxter, and Sedrish couldn’t remember if it was from Baxter or Rayonier’s Communication Manager. Schwartz said she didn’t know about it until she arrived on set and in testimony, her memory was pretty much gone as she stated repeatedly “I don’t remember” and “I don’t recall.”

Curiously, Film Allman’s attorneys never asked Baxter during his testimony at the OSHA hearing about where the two trains information came from. They also stated that they were going to subpoena the Rayonier Communications Manager, but, curiously, didn’t follow through with that. The Assistant Location Manager also didn’t testify. In other words, no one copped to the information about there only being only two trains that would pass on the tracks that day and then after that, it was safe to film — crucial information that was passed onto the crew to make them feel safe. It was all false.

The information about only two trains passing and a 60-second time to get off the tracks was thought to have come possibly from the assistant location manager, and no one knows where he got that information from.

Schwartz testified that she didn’t know until she was on the tracks 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,” Calhoun wrote. “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.”

Of course, there was no place to have gotten the information on only “two trains” passing and then it was safe to mount the track because it wasn’t real.

CSX trainmaster James Murray told the court that the track they were filming on was one of “our busiest sections of track we have. This is pretty much a pipeline from — one of two pipelines from the rest of the — our network in to the state of Florida.” He figured 27 to 33 trains per day come through there. So, he figured about 35 trains a day run on that track, including between 6-10 unscheduled trains a day.

“This (only two trains passing) proved to be wildly inaccurate,” Judge Calhoun wrote, who added that all Film Allman had to do was to ask the security guards at Rayonier. The Judge said that even they knew how many trains traveled the track.

“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.”

The Judge went onto write that “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.”

The Judge also questioned the veracity of Miller when he said under oath that he just showed up on a schedule that he saw (rather than created). “Respondent knew well in advance of Feb. 20 that it planned to film Scene 14 during the ‘magic hour’ between 4:00 and 6:00 p.m. This was a creative decision that had nothing to do with the expectation of train traffic. And yet, (Film Allman) did not seek out any information about what time the trains would allegedly come through.”

As they prepared to shoot the scene, William Hurt asked how much time would they have to get off the track if another train comes? Schwartz replied 60 seconds. Hurt said, “That’s not a lot of time.” Schwartz didn’t reply to him and another crew member then asked her what to do about the bed if a train came and Schwartz replied, “I don’t know. I guess we take it.” Schwartz would then tell the court that she considered that a safety briefing.

Calhoun wrote that, “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 did not seriously address his safety concerns.”

Apparently, that’s when members of the crew started to question whether they should be there and began to realize, as the Key Grip said, “you know, maybe we’re not really in the right place …”

No one from Film Allman, the Judge wrote, even sent employees down the track to observe how many seconds it took for a train to pass or how far away they could hear a train whistle from.

Before Hurt laid down on the hospital bed, he asked Schwartz, “So, two trains?” She answered, “Yes, two trains, but it couldn’t be confirmed.”

That’s when the Gaffer spoke up. “I asked her bout six times, Hillary, ‘what does that mean, it can’t be confirmed — what’s the plan?” Schwartz didn’t answer him.

It was that same Gaffer — who was one of the first employees to realize that a train was approaching — that yelled to the rest of his crew members: “Train!”

They didn’t have 60 seconds. Traveling at a high rate of speed (the approved speed for that area is 70 mph), the train arrived only 40 seconds later. This is what happened next:

The Key Grip said there was “confusion” as everyone tried to grab their gear. “And Miller came running up and 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 and grab the bed.” He said that Miller grabbed the bed and it slid off the rungs of the track. The B Camera Operator said that one of the legs of the bed got stuck in between the railroad ties. As they were scrambling, the Key Grip heard Miller say, “We’re not going to make it.”

Miller was pinned down by the bed and the Still Photographer ran back and helped him back up and off the track.

The B Camera Operator was hit with debris and was injured.

The Hairstylist (Joyce Gilliard) ran but couldn’t get off the track and knelt down and held onto the iron girder. When the train passed the wind pulled her and she couldn’t hold on. “And my arm went back into the train and it hit it and snapped in half,” she testified as she continued to hold on for dear life. She then used a sheet and made a tourniquet as best she could to stop the bleeding and held on.

After the train passed, the Gaffer ran back onto the trestle and saw the lifeless body of Jones on the ground. “I … saw who was hurt. And then I went to try to find a set medic but there wasn’t one.”

Schwartz then found the Gaffer by the parked vehicles and told him, “We need to do a head count.” The Second Second AD called 911 but didn’t know where they were to direct them to the injured.

Jones was dead. The rest of the crew were injured — some physically, some scarred emotionally.

The following day, Film Allman held a meeting at Meddin Studios to discuss moving forward with the project. But that was nixed when reps from IATSE showed up and shut down the production.

The Film Allman argument has been for a long while that they would not have knowingly put themselves in harm’s way. However, the Court rejected that argument saying, “They were plainly indifferent to their own safety as well as to that of their subordinates … the injuries to the supervisor’s co-workers and the death of (redacted Sarah Jones) were not the result 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 well being to the management personnel who had authority over them,” the Judge wrote.

The Hairstylist (Gilliard) said under oath that she felt unsafe and regretted not speaking up. When asked why she didn’t, she said that she was just starting a new 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.”

Judge Calhoun wrote that given the hierarchical nature of a film company, that “it is unrealistic to expect subordinate employees to give voice freely to their safety concerns,” something that Sedrish himself acknowledged in a deposition.

“Raising safety concerns could cause problems for a below-the-line crew member,” Sedrish said. “In general, you don’t want to get a reputation as a troublemaker.”

“The onus was not on Film Allman’s subordinate employees to opt out of working conditions which they believed were unsafe,” the Judge wrote, and she cited another case that stated: ” ‘After all, responsibility 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.’ ”

Filmmaker Randall Miller is currently serving a two-year jail sentence, followed by 8 years of probation after pleading guilty to criminal trespassing and involuntary manslaughter. However, after he pled guilty, he said through an attorney that he was actually innocent but he wanted to save his wife from criminal prosecution. His wife, Producer Jody Savin, escaped free and clear and is able to continue to work in the industry.

UPM Jay Sedrish and First AD Hillary Schwartz both pleaded guilty to involuntary manslaughter and criminal trespassing and were released on 10 years probation.

No charges were filed against Cinematographer Ozier or Location Manager Baxter.

Despite pleading guilty to criminal charges and also found in violation of federal OSHA safety regulations, the Directors Guild of America has yet to take any kind of action against Miller, Sedrish and Schwartz.

The death of Sarah Jones and injury to several others started a movement in the industry to speak up and blow the whistle on any safety violations crew members see on set. However, injuries and accidents continue due to the long hours of sleep deprivation, people are still getting hurt and/or killed, and workers still tell Deadline that they are afraid to speak up for fear of repercussions.

This article was printed from https://deadline.com/2015/09/midnight-rider-osha-ruling-sarah-jones-commission-statement-1201555335/