In this episode…

Mr. Andersen’s mantra is “trust but verify.” In his line of work, rules, and standards often incorporate by reference other, ever-changing rules and standards. It is not enough to simply understand the regulatory framework to remain an expert, but also the underlying changes. Cases can turn on this, as Paul emphasizes, “Sometimes I’m involved with the case, and right away I recognize [a] standard that’s no longer liable or no longer appropriate. So, you must be on your game of trust, but verify.”

Additional topics include the importance of working within a niche, storyboarding for preparation, and having a mentor.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Paul Andersen, Hazard Analysis Safety Engineer, OSHA Compliance Services, LLC

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Paul Andersen to the show. Mr. Andersen is a Hazard Analysis Safety Engineer for OSHA Compliance Services. With over 25 years of experience in regulatory client work, he is an experienced expert witness with dozens of engagements in a wide range of safety matters both for the plaintiff and defendant sides. Mr. Andersen, thank you for joining me here today.

Paul Andersen: Well, Noah, thank you and please call me Paul. Mr. Andersen is my dad.

Noah Bolmer: You got it, Paul. Let’s jump into it. You have been in safety and compliance for decades. How did you first get started in your profession?

Paul Andersen: Considering that I have had 25 years of experience, and I am only 26, I am young. No, my path was like many. I worked in the trades as a young man. My father was a general contractor, so I grew up in the trades. In the early 1980s, work halted during an economic slowdown. My father, in his infinite wisdom, ran me off and said, Go to school.” I ended up signing up for a couple of college courses, and [ninety] years later, I am somebody.

Noah Bolmer: That is quite the story. Your career has to require a large amount of knowledge, right? An ever-changing regulatory framework. This is OSHA. How do you remain an expert as OSHA and safety protocols in general continue to evolve?

Paul Andersen: That is a great way to frame this question here. So, there are experts and there are experts. Traditionally you will find people who are generalists and want to comment on everything. They want to get their teeth into it. Then some steer away from the bulk of things and only specialize in one or two items. The traditional one or two items that most safety professionals strive to do are like the OSHA’s top four or OSHA’s top 10. The things that are happening in our world are things like falls.

Noah Bolmer: Okay.

Paul Andersen: There are many falls. That is the number one. Look at the list for OSHA, and unfortunately, it causes many injuries and fatalities. There are a handful of people who fine-tune their expertise toward fall prevention, fall protection, the equipment itself, training, and so forth. They will have that tight niche while others come up in the construction trades with excavations. There are excavation activity guys who know all about trenches, road work, backhoes and excavators, and that kind of stuff. So, it is interesting. That was a great opening question.

Noah Bolmer: Would you consider your knowledge to be more on the broader spectrum or more on the niche spectrum that you were talking about?

Paul Andersen: I specialize in a handful of things given my diverse background as a young guy, I grew up in the trades, so I literally can operate anything. I recently let go of my Class A license because I did not need it, but I have driven about every piece of equipment. I have operated excavators, water trucks, and all that stuff. Then I worked for a separate contractor doing high-rise stuff, so I am into the fall protection stuff. As I became a safety guy, I dragged those lessons I learned along with me. I stick to the main things like excavations, fall protection, confined spaces. And believe it or not, I have been doing many slips, trips, and falls. We probably want to expand on that low-hanging fruit safety niche, right?

Noah Bolmer: Sure. Is that static or does that body of law change often? How difficult is it to stay abreast of what is going on and different? You might be working for somebody in a different state, and they might have different regulatory frameworks. How do you stay on top of all of that?

Paul Andersen: Interesting that you pose it that way because technically there is more than one OSHA. So, the OSHA Act rolled out in 1970 and it caught many people off guard. Many state regulators were not happy about it. There was a bit of pushback. So, what the federal government made an agreement in the statute they passed that states could have their own OSHA plans. They are called state plan states. This is important because their rules must be as stringent as the Federal OSHA rules and not watered down. For instance, we happen to have 50 states right now. Half of them are OSHA states, and the other half are state plan states. I am based out of California. So, we have Cal/OSHA and of course, everybody’s rolling their eyes. Man, that is a tough state. It is true. Cal/OSHA standards are extremely stringent. They go far and above many federal OSHA standards. In fact, there are many Cal/OSHA standards that nobody else has.

Noah Bolmer: When you are engaged in another state, you have to back it up. You must know the federal statutes because all of them, as you said, start with that. But say you are doing some expert work for another state that has rules different than California’s, but also higher than the standard. Do you find yourself having to scramble and research stuff, or do you just turn down those types of offers? How do you deal with that?

Paul Andersen: First, 25 states are under the federal program, and we work out Texas, which is under the Fed OSHA standards. Enough to become a recognized safety professional to get some formal credentials all of the exams are currently tested under the Fed OSHA standards. So, for you to get one of those credentials, you have to have enough expertise in Federal standards to pass the exam to earn those credentials. So, when you look at my card, it has all those little alphabets behind there. That tells you I know at least the basic stuff. As you mentioned there are other states where I do work. I do some work in Washington State, and I do quite a bit of work in Oregon. Oregon has its own OSHA, which competes with California. They have many stand-alone citations. Most citations are built on the OSHA platform. They have added quite a bit, so it is more extensive than you can imagine. So yeah, you must keep abreast of the various states or jurisdictions that you get involved with.

Noah Bolmer: Let’s go back to your first engagements. Were you looking for expert work in specific or did you just kind of receive a call out of the blue one day?

Paul Andersen: I was fortunate. I was working for a high-end guy in the Bay Area. He had a safety company, and I went to work for him. He is a former retired, this, that, and the other thing. So, he gets a lot of business. He was one of my mentors and he helped me become an expert through his company. Then, when I left to go to the company I am at now. I was able to bring those skills and expertise with me, so I was lucky to be mentored directly into the role of an expert witness.

Noah Bolmer: So, you had somebody show you the ropes. What sorts of techniques and education did you get from this mentor?

Paul Andersen: The phrase that resonates with me is, “trust, but verify.” Many people have opinions, and there is a large amount of written work out there that you use for reference. Even some statues or regulations that are not correct. As you find in Cal/OSHA they show the standards are written with certain language that says, “In accordance with” and then they quote a standard. Often, they quote ANSI (American National Standards Institute) or the National Fire Protection Association standards. Well, they do not keep up with that. So, when those standards sunset or lapse, Cal/OSHA does not go back and change or update their standard. So sometimes I am involved with the case, and right away, I recognize their quote is the standard that is no longer appropriate. So yeah, you must be on your game of trust, but verify.

Noah Bolmer: Going back to your earlier engagements, let’s talk about preparation and maybe how that has evolved. When you are getting ready to write a new report, give testimony, or even do cross-examination, what sorts of techniques did they use, and do they use now? So, you are experienced enough know what works and what does not work. What are the preparation programs?

Paul Andersen: I would not go that far, but . . .

Noah Bolmer: What are the preparation methods that attorneys can use with experts that are the most effective for you?

Paul Andersen: So, what I found successful in getting my job done is I storyboard and write an outline. Now, the trick is, and this is my disclaimer. When you work under an attorney, you have attorney-client work privilege, and your stuff is protected, but under the discovery rules, they can get you for your notes and your raw materials. Sometimes, you discover a smoking gun that you might not share because you do not have the details right, it is a suspicion, or they are something that does not gel. So, you are not putting that information forward. You have to be careful what you put in writing. I have a big whiteboard and storyboard like I do video work, and then I write an outline. I try to do the goals. I have an opening where I am trying to show, declare, and state. Then the body of it has some bullet points, and then in the summary, I try to tie a knot on it. Then, I throw in my disclaimer which states, “This is based on the information that was presented to me. If new information comes up, I hold the right to change my opinion, if need be.” That is a basic method.

Noah Bolmer: Is that a collaborative process? Do you take a proactive approach via your attorney? When you are doing these storyboards and doing your preparation, how much input do you give?

Paul Andersen: The attorneys usually keep a firewall between you and the information. They do not want to know a whole lot. They want the highlights, the 30,000-foot view, is what one of my attorneys always tells me. Another one says just the highlights. We go on in 5 minutes or something like that. It is much the long haul of putting all this stuff together. It is like putting together a puzzle with extra pieces. Sometimes, you stumble into stuff that does not fit or match, is a coincidence, or whatnot. It is putting together a puzzle with extra pieces.

Noah Bolmer: When do you usually get involved in the process? In other words, do you get involved when the case starts, in the middle, or toward the end?

Paul Andersen: That is an open question. I can be involved at any time. I have half a dozen attorneys that I speak to weekly, where we have conversations about stuff. I have two attorneys with who I do beer and burgers. Sometimes it is a 5-minute call where we talk about things to stay in contact. I have questions for them, or they have general questions for me. For the most part, you get involved when the attorney thinks that the case is going to trial, and they want an expert on it right away. Attorneys have a detailed process for giving you information. There are a couple of different venues where an expert can serve. There is a criminal, and we all see that on TV. They are civil, which we all hear about, and then there is OSHA. These different venues are similar but different. With the OSHA stuff, that is an administrative court and an administrative process and in most of these cases, the judge is not a judge. It is an attorney that has been appointed. There are rules about how you can be a judge and who is a judge. It is an administrative judge appointed by the governor, a jurisdiction, or something. In OSHA cases, these administrative judges do not have the right to put you in jail or hold you in contempt If you make mistakes. They can stop you from testifying or remove your testimony. These judges have controls like that, but it is not the same as a criminal court or civil court judge, where if you do not have your ducks in a row, they can make life difficult for you.

Noah Bolmer: That is interesting, and I assume that the bulk of your work is in front of these OSHA appointees rather than judges. Is that right?

Paul Andersen: Percentage-wise wise the higher percentage is with OSHA because for me that is my expertise. I am a subject matter expert with FED-OSHA regulations as well as Cal/OSHA regulations. I do not think that many people have the subject matter expertise of Cal/OSHA. I get many calls because of that. Well, I was there, and I learned from the inside and an inside joke for me is everybody wants to be OSHA certified. OSHA does not certify anyone unless you are an employee. I am OSHA certified.

Noah Bolmer: Right. OSHA certified Paul.

Paul Andersen: So yeah, it is actually.

Paul Andersen: But getting back to the original avenue you were asking on this question. So, there are three avenues, and sometimes the preparation is the same. So, when I am on an OSHA case, I usually get it after the citation packet has been issued. Until it becomes final from an order from the ALJ (Administrative Law Judge), everything is just allegations. You have room to push back on Cal/OSHA, or in the federal case, the district manager of the local office can do some negotiations and pushbacks. Sometimes, the pursuit is to convince them to reduce the finding. In the federal world, there are serious citations and other than serious citations. The serious ones have a higher value. So sometimes you can bring up information or evidence that shows that they made the wrong judgment call on the severity. Sometimes it is a work in progress and that is your goal. OSHA has an allowance, I guess that is a good word for it where they can combine or reduce citations. There is a standard for something that is called lockout tag out. That is the common term lockout tag out. If they issue the Cal/OSHA issues say six lockout tag-out citations. You could deal with the OSHA district manager and combine citations to two or maybe one by showing conditions or poking holes in their findings. You can get some of these things reduced other than the OSHA ones, I will get the case file dumped on me, and I am flipping through the pages, and that is where that trust, but verify comes in. This is one of those disclaimers. I should not say it out loud. We do not always win because the employer is right, we win because the OSHA people have done a bad job. OSHA has the burden of proof, and they have to be right. It cannot be a near miss. It cannot be likely. The burden of proof is 100% on them, so you must show that they made enough mistakes. Common mistakes would be giving you a citation for lack of inspection documentation. They are expecting a formal piece of paper that says at the top “Inspection Form.” You do not have that as a form. So, in their findings, they said you did not document your inspections when in reality, you send a text message, have it on a spreadsheet, or send it as an e-mail. Many times, on a construction site, they will put it on the whiteboard at the job site trailer. So, it was documented and that meets the intent in the spirit of the standard, but Cal/OSHA shows the inspector for OSHA. They are looking for a piece of paper that says “Inspection Form.” Many times, that is what it comes down to. You have to look at every document and verify where things are going.

Noah Bolmer: Before you go to a trial and you have been in many trials, there is a report that you must write, and that forms the basis of your testimony. When you write your expert report, are you typically given some kind of a skeleton outline, or are you developing reports whole cloth?

Paul Andersen: If that was only the case. You write your report in your own style. Oddly enough, I was on a case six or seven months ago where the report that I submitted to the attorney, he submitted to another attorney on the opposing side and that guy complained because the format was exactly like an expert he uses. He thought it was odd. That ended up being my mentor. The gentleman I used to work for. He taught me this certain style and format which I have adopted. It is my format now. What are the odds that something like that would happen? I have looked at many reports and they are all over the board on what style. I do the old school with an introduction, and I have a body in bullet points, and then I do a summary closing.

Noah Bolmer: Let’s pivot to ethics for a moment because you were saying that it is being insinuated that you were being coached when in actuality it seemed like you were following a standard style. Have you ever been pressured to write a report in a specific way or testify in a way that is not necessarily something you would agree with? If so, how do you deal with those sorts of situations?

Paul Andersen: It is funny that you are bringing up ethics. Of course, not every attorney is as ethical as you would want attorneys to be. But at least they are held to a higher standard. Many things can go bad for an attorney that is not ethical. Sometimes, it is a gray area they live in, and sometimes they cross the line, then bad things happen to them. Safety professionals, unless you are out-of-the-box, I think the only thing you could do is lose credibility. If you lose credibility, then you lose clients because it is a small world, and everybody talks. So yeah, you must be ethical. I have never been asked or directed to write in a certain style. I have never been asked, forced, or led down the path of this is what I want your findings to reflect. But lawyers are not stupid. They first test the waters, so they have you give an unofficial opinion. How do I look? What are my strengths? What are my weaknesses? You are giving them an opinion and it is usually over the phone. Nothing in writing. Often, the people I run with do not want a dead dog. Nobody adopts a dead dog, so you get a case, and it is so bad that they are in trouble. You have to be honest with them. [You say,] “This is a bad case. You need to back up and figure out a settlement or you need to figure out a compromise because things do not look good for you.” I tell the attorney straight up. Here is the other disclaimer. You can be arrogant when you have a large amount of work. My company has enough work where we turn down work that does not seem right. The sniff test on this one does not seem right. We are looking for cases that we can either contribute to and help push the client over the top or one that is good that is easy to push over the top, so we do not have to work so hard.

Noah Bolmer: That is a perfect segue. This is normally one of my wrap-up questions, but I am going to go ahead and ask you now, how important is winning to you? Getting the big “W” where this is an actual trial, and you win the case. Is that something that comes into the calculus when you are vetting? You were talking about getting the call from the attorney and whether it passed the sniff test. Is it important not only that you can help, but is it important that you are going to be on the winning side?

Paul Andersen: From a personal standpoint, no one likes to lose. The downside of losing is I work with most of the attorneys. If I lose a lot, they might think I am not the right guy. So, there is some downside to losing the case. I have never lost a case. I have had portions not go the way that I wanted to go. We had an OSHA case where the client had 21 citations and we were able to upend 18 of them. The judge upheld three. Oddly enough, I thought we were a hundred percent in the clear on the three citations she upheld, and the ones that we beat back. I thought, “This is just a shot in the dark.” So, it is weird how that goes, but winning is better than losing. But like I said, it is a challenge because the employer is not always innocent. I should say the problem is in my favor. The inspectors do such a poor job. You are going up against the report and when they do a bad report it usually goes well for us. If they do an ironclad report, it is hard for us because the judge, like in OSHA’s case here before a regular judge. Somebody who is an attorney. What are the odds that an attorney knows the difference between a mini excavator, a backhoe, and an excavator? When CO-OSHA cites the wrong standard and they are talking about a different piece of equipment and you point that out to the judge, they do not know the difference. It is hard to convince them. We do photos and videos, but to them, that mini excavator looks like a big excavator. But it is different. There is a different standard for different uses. Sometimes it is hard to get the judge to understand why the CO OSHA goes wrong.

Noah Bolmer: Do you tend to know the experts on the other side?

Paul Andersen: Very few times.

Noah Bolmer: Once all of this has gone down, do you stay abreast of these cases? Do you find out who wins, loses or if it settles after the fact?

Paul Andersen: There is so much going on that you do not, other than at the water cooler. When you go to the safety conferences, the other safety guys might say, “Yeah, I lost my shorts.” Or “I beat these guys up.” You do not know what is going on. Many times, at various safety symposiums for safety professionals. People like me will present one or two cases. I had a good case. I can do a presentation on it and make sure that I am not sharing anything proprietary or embarrassing. Many of these cases make good presentations at safety conferences so other safety professionals can glean some approaches and successes in their methods.

Noah Bolmer: Sure. Before we wrap up, do you have any last-minute advice that you would like to give to either newer expert witnesses or attorneys who are working with expert witnesses, especially newer ones?

Paul Andersen: You need to have a script. If you are glib and you think you are just going to roll with questions and see how they work out. No bueno. Just like you hear in the movies, you never ask a question you do not know the answer to. There is fact-finding when you are in a hearing or a trial. You only answer questions you know the answer to. Sometimes you have to project and guess what answers they are going to give you, but you have to have some knowledge. Then you must follow up with one or two questions to cover that because you are trying to get them to say something to benefit you. Being mentored by somebody that is well-qualified is great. Then, we talked about trust but verify, which is extremely important across all avenues. With OSHA, many times, they will write a standard and then the information within that standard has changed and nobody has tracked it. You can find many by rereading that standard and making sure it is the most up to date.

Noah Bolmer: Sage advice, Paul, thank you for joining me today.

Paul Andersen, REA, CHST, OWSI, CSHO, CSM, MSP SME, Hazard Analysis Safety Engineer

Paul Andersen, is a Hazard Analysis Safety Engineer for OSHA Compliance Services and is one of the foremost experts in Cal/OSHA compliance. With over three decades of expert witness experience, he is sought after by plaintiff and defendant sides for his depth of knowledge in matters ranging from slip-and-falls to comprehensive inspections, across numerous jurisdictions and industries.