EXCLUSIVE: Lawyers for Film Allman, LLC, the production company that was set up by now-jailed filmmaker Randall Miller and his wife Jody Savin for the Gregg Allman biopic Midnight Rider, are fighting the Occupational Safety and Health Review Commission’s review judge’s second ruling that stated the company’s supervising crew “misrepresented” the facts repeatedly. The judge, Sharon D. Calhoun in Georgia, upheld the safety violations against the company as well as a $74,900 fine levied against the company.

Film Allman is, once again, disputing the fine and the “willful” safety violation. The fine, they say, is “disastrous for this small company and its principals who have safely provided more than 20,000 jobs over their careers.” Lawyers asked for another discretionary review on three issues (see below). That review will next go to an OSHRC judge in Washington, D.C. It is curious why they are continuing to spend legal fees vs. paying the fine.

This marks the second time Film Allman is appealing a decision that it was found in violation of “one willful and one serious safety violation” in the on-set death of 27-year-old camera assistant Sarah Jones and injuries to several others when they criminally trespassed and placed their crew on live tracks in Georgia to steal a shot.

Film Allman is fighting on three fronts (read it here).

1). That Judge Calhoun “erroneously denied Film Allman pre-hearing access to statements of former employees that contained exculpatory and helpful information” for their defense. That information, they say, regarded conflicting accounts from crew about whether or not there was a safety meeting as well as questions about a third train expected to come down the train tracks. Not having this information, lawyers say, gave them at a disadvantage in putting up a strong defense.

2). That Film Allman’s actions were not “willful.” Lawyers are arguing that the company’s actions “were not intentional or reckless” because they believed that only two trains would pass by that afternoon. Also, they point the finger to the director for Rayonier, Tina Kicklighter, who brought them to the land (while location scouting) and then escorted them onto the tracks. They said that they spent at least 30 minutes out on the tracks and no trains came so they relied on “Rayonier’s superior knowledge as the property owner in proceeding with filming on the afternoon of Feb. 20th.” There also noted, “There were no warning signs or ‘Keep Off’ or ‘No Trespassing’ signs posted near the tracks.”

Film Allman’s Miller (the writer/director/producer of Midnight Rider) pleaded guilty to criminal trespassing and felony involuntary manslaughter and is in jail. Midnight Rider‘s unit production manager Jay Sedrish and first assistant director Hillary Schwartz also pleaded guilty to the same charges and were put on 10 years probation. Under Georgia law, criminal trespassing is defined as when someone “knowingly and without authority … enters upon the land or premises of another person … after receiving, prior to such entry, notice from the owner … that such entry is forbidden.”

The film company was denied permission twice to shoot on the tracks which are owned by CSX. The second time, they were denied the morning of the shoot via email sent to location manager Charles Baxter that was then discussed with his superiors. They went anyway and decided to shoot on live tracks without telling their crew that they were denied permission.

They went forward without train personnel present, without giving their crew a safety bulletin, without a medic on the set and without knowing the train schedule (which was not publicly available because they tried to find one online to no avail).

Calhoun had also noted that 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 estimated 35 trains a day run on the track, including between 6-10 unscheduled trains a day.

Lawyers for Film Allman also wrote that while the company “showed a lack of diligence in filming” on February 20, they were “not intentionally exposing its employees to danger. Had Film Allman known the ‘two trains’ information as unconfirmed and unreliable, it would have not filmed on the tracks that afternoon.” And because of that and “there was no evidence to show that Film Allman knew it was acting in violation of the law,” they are saying that it doesn’t fall into the realm of “willful” but rather falls in the “serious”category.

In her earlier ruling, Calhoun said it could not be established as to who told Film Allman that there would be only two trains on the track that day and, she said, that it seemed to be pulled out of thin air. In their objection, Film Allman doesn’t provide a source for the two-train information either.

3). Lawyers for the production company also said that “based on Film Allman’s safe working history,” the company’s size and “lack of any bad intent,” the amount of the penalty should be reduced. They state that the actions were not malicious.

They also state: “The principals of Film Allman, director Randall Miller and his wife, writer/producer Jody Savin, have never had a significant injury to any of their employees in any of their previous movies. Film Allman employees and others testified that Miller and Savin had always operated in a safe manner.”

They also point to the fact that the company hired union workers as a good faith effort in providing a safe working environment: “Film Allman demonstrated good faith in striving to provide a safe work place for its employees, in part by hiring cast and crew who were union members. By virtue of their union membership, these people had safety training.”

Calhoun, however, reiterated in her September 16 ruling (after the lawyers’ first appeal) that Film Allman “compromised industry safety standards at virtually every stage” of filming.

The lawyer for Film Allman then zings OSHA, but taking an oddball stance basing its argument on viewing finished movie trailers: “Film Allman has been unable to find another instance where OSHA issued a citation to a movie production company or film crew. Indeed one only has to watch a few movie previews to see that OSHA almost never imposes its standard workplace restrictions of such things as rail heights or egress lands which makes its determinations in Film Allman’s case seem arbitrary at best.”

They ask that the fine be reduced because of the size of the company and to “reflect Film Allman’s good faith in striving to provide a safe work place and prior safe work history.”

Film Allman was initially found to be in violation of federal safety standards in August 2014, after which lawyers for the production company disagreed and appealed to the OSHA Review Commission. That resulted in a four-day mini-trial held in March and April of this year with subsequent depositions taken May. Many of the crew were put under oath during that time.

After reviewing the evidence, Calhoun ruled against Film Allman, initially on September 16, 2015, after much more was revealed in court about what happened both in the days leading up to Jones’ death on February 20, and on the day Miller and other supervising crew put their crew on the track.

The court found that a safety bulletin was purposely not attached to the call sheet, that there was no safety meeting prior to the shoot (which Film Allman lawyers are disputing) and that the crew had no access to a medic in what was a remote location (there wasn’t a medic on the set), had no idea that their supervisors were denied permission to shoot on the track and were told that it was safe to shoot after two trains passed over the trestle. The track was 25 to 30 feet above the Altamaha River and only had two wires running along one side.

The crew carried a mattress out onto the trestle for a hospital bed prop and placed it perpendicular over the tracks about 100 feet in from the end of the trestle. There were no sides to the trestle, only wires on one side. The judge also noted that the left bridge beam created uneven surfaces and it didn’t even accommodate the length of someone’s foot. Still, Miller and his cinematographer Michael Ozier went forward with the shot, even though the bed entirely blocked the the area between the east and west bridge beams.

“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 September 16 decision. “Film Allman’s utter lack of forethought in formulating a coherent emergency exit plan is mystifying.”

Film Allman had until October 20 to file an objection and they did so on that date. Deadline obtained its petition for another review through a Freedom of Information Act request.