EXCLUSIVE: New, un-redacted information revealing what specific supervising crew members did (or did not do) on the set of Midnight Rider has been put into a Department of Labor court filing to refute producer Film Allman’s claim that it was not guilty of a “willful safety violation.” The brief asks the 11th Circuit Court of Appeals to uphold “in its entirety” the Occupational Safety & Health Review Commission decision that slapped Film Allman with the violation and a fine for its actions on the set of the Gregg Allman biopic that led to the death of camera assistant Sarah Jones.
Included in its evidence is full email content from CSX to location manager Charlie Baxter and specific actions of director Randall Miller, first AD Hillary Schwartz, and unit production manager Jay Sedrish on the day of the shoot, and who got the Baxter emails saying for the second time that CSX had denied access to the Doctortown train trestle. That, along with a photo of Miller and other crew members next to the hospital bed on the train trestle, were all put into the filing.
Film Allman has not only been fighting OSHA, but Miller and his attorneys are also attempting to blame CSX for liability in civil court as they fight against their own insurer New York Marine, which says it is not responsible for losses due to a criminal act.
The actions/inactions of the supervising crew was found to have resulted in Jones’ death and serious injuries to other crewmembers when a train plowed through the set that was on live train tracks.
Film Allman, which has twice fought the initial OSHA decision, was set up by filmmaker Miller and his wife, producer Jody Savin, to film Midnight Rider. The company had appealed once before and lost so they appealed again in January.
The OSHA ruling slapped the company with a fine for “one willful and one serious safety violation.” A Secretary of Labor attorney noted that oral arguments don’t need to be heard as all evidence is on paper. Only the willful violation is under review, which carries with it a $70,000 fine. (The serious violation carried with it a $4,900 fine which fell out of contention.)
In arguing to have the willful violation upheld, the Secretary of Labor attorney stated: “Willful violations are marked by an employer’s plain indifference to employee safety,” and “In the Eleventh Circuit, a willful violation is shown by the employer’s ‘intentional disregard of, or plain indifference to, OSHA requirements’,” which, they argue, occurred on the set of Midnight Rider.
The Secretary of Labor attorney argues every point of Film Allman’s contention in the brief, stating that not only did the company criminally trespass, but “Film Allman also failed to take virtually every basic safety precaution standard in the film industry.”
Film Allman, one principal of which (Miller) spent time in jail for the crime of criminal trespass and felony involuntary manslaughter, has been questioning whether the administrative law judge who denied its first appeal acted properly on three points as outlined by the Labor Secretary:
Whether the ALJ properly characterized Film Allman’s violation of the OSH Act’s general duty clause as willful, where willful violations are shown by plain indifference to employee safety and Film Allman knowingly trespassed on a train trestle owned by CSX without permission in order to film a movie scene; misled its employees with inaccurate and unverified information about how many trains were expected to pass over the trestle; failed to take basic safety precautions accepted as standard within the film industry; and failed to have any evacuation plan in case of an oncoming train, resulting in the death of one employee.
Whether the ALJ properly imposed the maximum penalty of $70,000 for Film Allman’s willful violation of the OSH Act where she took into account the relevant statutory factors and the gravity of the violation was extremely high.
3. Whether the ALJ correctly held that the Secretary lawfully invoked the informer’s privilege to withhold certain parts of the investigative record that would have disclosed the identity of confidential informers, where the public interest in maintaining informer anonymity is strong and Film Allman failed to demonstrate that it needed the withheld information to prepare its defense.
The following strongly worded brief shuts down all of Film Allman’s points while providing detailed actions of supervising crew leading up to the death of Jones and injury of other crew. Read the entire brief here.