Case Summary – Lancaster
Explosion and Fire Marcellus Shale Natural Gas Well Pad Site – Third Party Claims
We successfully pursued third-party work accident claims for Richard Lancaster and Frank Lancaster. These men were injured as a result of an explosion and fire at a Marcellus Shale well pad site. Chesapeake Energy, Signal Completion Services and H&H Oilfield Services were engaged in a Marcellus Shale natural gas well drilling operation in Avella, Pennsylvania, and our clients were in the scope of their employment with BBU Environmental Services on the “Joseph Powers” well site. (http://www.bizjournals.com/pittsburgh/blog/energy/2011/02/marcellus-fire-at-chesapeake-well-site.html).
Chesapeake, Signal and H & H were conducting flow back testing without properly controlling natural gas vapors and condensate, resulting in the vapors and condensate exploding and catching on fire. The companies failed to utilize natural gas and condensate vapor meters to monitor the existence and amount of gas vapors in the atmosphere, and the companies failed to equip workers on the site with such meters. We retained experts who opined that the companies violated industry safety standards in their operation of the Marcellus Shale well pad site.
We sued the defendants in Kanawha County, West Virginia, despite the fact that the explosion and fire occurred in Pennsylvania, because our clients’ employer and H&H were both West Virginia based companies. Chesapeake was unsuccessful in its efforts to dismiss our case and move it to Pennsylvania on forum non-conveniens grounds. (https://en.wikipedia.org/wiki/Forum_non_conveniens) There was also an issue of spoliation of evidence because the defendants failed to preserve the well pad site for our inspection, despite receiving written notice from us requesting preservation of the site. (https://en.wikipedia.org/wiki/Spoliation_of_evidence)
Chesapeake was cited by Pennsylvania authorities in relation to the explosion and fire and fought hard to prevent us from obtaining public records reflecting the citations and fines imposed on them. We were forced to file suit in Pennsylvania to force production of the records under the Freedom of Information Act. (http://www.foia.gov/) Once the public records were obtained, it was clear that Chesapeake had admitted its wrongdoing to government authorities, while asserting in our case that it had done nothing wrong.
Our clients suffered severe physical and psychological injuries as a result of this fire and explosion. Their damages could have been easily avoided if the companies had employed relatively low-cost safety measures to prevent and detect unsafe levels of gas and condensate vapor.
Result: Substantial confidential settlement on behalf of our clients.
Richard Lancaster and Frank Lancaster v. Chesapeake Appalachia, LLC., H & H Oilfield Services, LLC., and Signal Completion Cervices, LLC.,
Circuit Court of Kanawha County, West Virginia, Civil Action No.: 11-C-694
November 3, 2014
Yaletchko v. Charles Paul Bennish, Jr – Work Injury
We represented a police officer injured on the job by a person that had resisted arrest. The police officer suffered a broken hand that required survey and missed a significant amount of work. The hand injury impacted the police officer in the use of his service weapon. The police officer had a workers compensation claim and we represented the police officer on a third party claim against the homeowner that resisted arrest. The homeowner insurer of the person that resisted arrest refused to pay the police officer’s clam and we proceeded to trial in the Delaware County Court of Common Pleas. After a one week trial, we obtained a liability verdict for the police officer. The homeowner’s insurance company settled for a confidential amount before the jury was re-impaneled to decide the damages portion of the case. All persons injured on the job should obtain a free telephone consultation with an experienced work accident attorney to make sure that they identify all of the potential claims and benefits applicable to their situation.
Fultz Work Injury – Fall Accident – Third Party Claims Against Contractors
Our client, Glenn Fultz, was injured in a fall accident while at work on May 14, 2013. Once we became involved in the case, we had to sort through a myriad of issues, including the role of multiple contractors on the job site. When we determined the role each company played and assembled a team of experts to address the work safety and medical issues, we were able to resolve the case for Glenn and his wife, Constance.
In 2011, Northern Management Services (“NMS”) was contracted by the General Services Administration (“GSA”) to perform inspection and maintenance of 17 federal buildings, including the Parkersburg Federal Building, pursuant to the Facility Engineering, Operations and Maintenance Services contract entered into by NMS. This contract required that NMS inspect and maintain the premises all the way to the property line and including interior and exterior architectural and structural system components.
A portion of the property included an air intake shaft that allowed airflow necessary for the HVAC system in the building. This shaft was 14 feet deep and was covered by several pieces of metal grating that allowed airflow to pass through the shaft. Despite the grating being a structural component of the premises and accessing the shaft that included using the grating as a walking working surface, NMS never made any determination regarding the structural stability and condition of the support system suspending the grating over the 14-foot deep pit.
In 2012, Henderson Contractors was contracted by the GSA for approximately $1.4 million to perform an Electrical Distribution Replacement and Upgrade project. Henderson then subcontracted the electrical portion of the work to B. Armstrong Electrical Services (“B. Armstrong”), with Henderson, as the prime contractor, retaining safety responsibility for the entire project. Subsequently, B. Armstrong subcontracted the construction of a concrete pad for electrical components to rest upon to B&F Contracting (“B&F”).
On May 14, 2013, our client, Glenn Fultz, and his co-worker, Rick Potter, were assigned and directed by B&F’s management to supply concrete to the electrical room using the air intake shaft as the means of access. This necessitated the use of the air intake grating as a walking and working surface, despite none of the defendants making any determination as to the structural stability of the grates. Messrs. Potter and Fultz were required to remove one of the 9 foot by 2 foot sections of grating to run a pump hose down the shaft, thereby creating an 9’x2’ hole. Despite this hole being created, Messrs. Potter and Fultz were never trained nor instructed on the use of fall protection, namely a hardness and lanyard.
As a result of the deteriorated state of the support structures suspending the grating above the air intake pit which were never properly inspected and examined, the unstable supports broke free as Rick and Glenn were attempting to replace the grating after the pump hose had been removed. Because they were neither provided with nor required to wear any type of fall protection, as the grating collapsed, they fell uncontrolled onto the concrete floor of the air intake shaft where the 315 pounds pieces of grating rained down upon them causing Rick and Glenn both to suffer permanent and disabling injuries.
In the days that followed, individuals from NMS and B. Armstrong actually made an endeavor to perform a thorough examination of other grates directly adjacent to the one that collapsed beneath Rick and Glenn. Not surprisingly, some of these grates, too, were found to be unsafe and in a state of deterioration such that they had to be repaired.
Northern Management failed to not only protect its own employees when they were exposed to a potential fall hazard when walking/working upon the air intake grate, but also failed to train them on the requirement and procedure to perform adequate hazard assessments to maintain the premises in a safe condition so as to not pose a hazards to persons visiting or performing work on the property.
Such negligent conduct was clearly demonstrated through the lack of training provided to Northern Management’s employees, cultivating a mindset whereby employees would follow a computer generated checklist without regard to conditions readily observable had Northern Management followed the contract and its own company safety policy.
OSHA issued citations in response to the incident:
29 CFR 1926.501 regulates in what situations fall protection is required and what actions an employer must take to minimize exposure of its employees to fall hazards. Among the portions which were pertinent to this case were as follows:
1926.501(a)(2) The employer shall determine if the walking/working surfaces on which its employees are to work have the strength and structural integrity to support employees safely. Employees shall be allowed to work on those surfaces only when the surfaces have the requisite strength and structural integrity.
1926.501(b)(1) “Unprotected sides and edges.” Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.
On May 13, 2013, Glenn Fultz was brought via ambulance to Camden Clark Hospital’s emergency room. He complained of severe pain in his left flank area and had obvious abrasions in that area. Scans revealed significant spinal fractures of the T12 vertebra and a compression fracture at L2 and L4, as well as a fracture of the spinous process at T11. Glenn was admitted for further observation to the orthopedic floor.
The following day, Glenn underwent an L2 and L4 bilateral kyphoplasty, internal fixation of T1- to L2 with a pedicle screw, posterial lateral fusion, and open kyphoplasty at T12, decompression including T12 laminectory at T11 to L1. Glenn had to endure an extensive regimen of physical therapy 5 days a week for a four-month period at Kings Daughter’s Medical Center. During the visits he engaged in rehabilitation of his back for pain management and range of motion.
Our expert, Elizabeth Davis, RN, MS, CRRN, CLCP, CRC, evaluated Glenn on August 3, 2014 in his home. After an extensive in-person evaluation and record review, Ms. Davis noted vocational impairments and loss of earning capacity, as Glenn now had permanent work restrictions.
On September 16, 2014, Glenn underwent an Independent Medical Examination by Robert Walker, M.D. Glenn continued to have numbness extending from his tailbone down both legs. Glenn had problems getting in and out of the bathtub, grooming, and even getting on and off the toilet and trouble sleeping due to back and leg pain. Dr. Walker opined that Glenn had 40% whole person impairment.
We were able to show that the evidence and testimony painted a clear picture of liability and catastrophic damages that would warrant a substantial verdict from a jury. The “I didn’t know the law” or “its not my job” defenses would not have been well-received in the face of clear law and incriminating testimony from the witnesses, including the defendants’ own witnesses. Every witness conceded the presence of a fall hazard the moment the grate was removed, and it was undisputed that no fall protection was provided to Messrs. Potter and Fultz. Likewise, there was no evidence of any type of inspection of the subject grating within 11 months prior to Messrs. Potter and Fultz’ injury. No actual determination was made as to the structural stability of the grating, as required by law.
Result: Substantial Confidential Settlement for Glenn and Constance Fultz.
GLENN FULTZ and CONSTANCE FULTZ v. B & F CONTRACTING, INC.,
A Kentucky Corporation, NORTHERN MANAGEMENT SERVICES, INC.,
an Idaho Corporation, B. ARMSTRONG ELECTRICAL SERVICES, INC.,
a West Virginia corporation, and HENDERSON CONTRACTORS CORPORATION,
an Ohio corporation,
Consolidated Civil Action No. 14-C-841, Judge Louis H. Bloom, Circuit Court Of Kanawha County, West Virginia
Hale – Work Injury – Third Party Claim
Our client, Betty Hale, was working for Aramark at the Southwestern Regional Jail in West Virginia on October 6, 2006, when a 300lb mixer toppled from a wheeled cart and landed on her foot. Ms. Hale lost several toes in the incident.
Ms. Hale contacted us because she was having problems with the workers compensation insurer not wanting to cover her medical care. We straightened that out for her. However, when we investigated her incident, we determined the Ms. Hale had a potential third party claim against the West Virginia Regional Jail Authority (“Jail) based on the facts of the incident.
The State of West Virginia had a contract with Aramark to run the Jail kitchens in all of the Regional Jails throughout the State. This process required an Aramark supervisor to supervise inmates in the preparation and serving of meals. The equipment was provided by the Jail, including an industrial mixer perched on a wheeled cart.
On October 6, 2006, Ms. Hale was wheeling the mixer on the cart off of a metal grate in the kitchen floor where the mixer had been hosed off. When one of the wheels on the cart became lodged on the uneven surface created by the lower sitting metal grate and higher sitting tile floor, the cart got stuck. An inmate then came to assist Ms. Hale and picked up the opposite side of the cart, toppling the mixer, which landed on Ms. Hale’s foot and severely injured her.
When we contacted the Jail’s insurance company, they immediately denied liability and blamed Ms. Hale for her injury. We then filed suit. We discovered that the mixer had been unbolted from the wheeled cart prior to Ms. Hale’s injury because the Jail changed mixers and never re-bolted the new mixer to the cart. The Jail’s lawyer’s asserted that the mixer was not bolted to the cart because the cart was not supposed to be moved.
We hired a forensic engineer who identified a violation of building safety code that caused the cart to get lodged between the tile floor and metal drainage grate. By code, walking surfaces are required to be even or not to exceed ¼ inch. In this case, the metal drainage grate was sitting more than ¼ inch below the surface of the tile floor, creating an uneven surface the broke the rule. This uneven floor surface caused the wheels on the cart to get stuck. Thus, we argued that the proximate cause of the incident was the code violation.
Once we identified the code violation, the Jail’s lawyers recruited an inmate to argue that Ms. Hale was the person that lifted the cart. This tactic of using an inmate to testify against Ms. Hale, combined with the argument that mixer was not be wheeled around the kitchen, despite being perched on a wheeled cart, proved to be folly. The jury rejected the Jail’s tactics and returned a verdict of $827,000 for Ms. Hale.
Prior to the trial, the Jail’s insurance company would not offer any more than $50,000 to settle the case. After the verdict, with pre-judgment and post-judgment interest, Ms. Hale’s verdict was nearly one million dollars.
Betty Jean Hale v. West Virginia Regional Jail and Correctional Facility Authority, et al., Circuit Court of Logan County, West Virginia, Civil Action No.: 07-C-193
Worker Injured on Loading Dock – $573,000 Verdict
On May 28, 2015, our client, Paul Michalec, was an invitee on the premises of Defendant, American Supply, Inc. (“American Supply”). Mr. Michalec worked for Hampton Inn and Hampton Inn paid American Supply to store hotel supplies at their warehouse. While Mr. Michalec was loading Hampton Inn supplies onto a rented box truck with his co-worker, Ronald Love, the dock plate that acted as a bridge between the dock and the truck bed collapsed from underneath Mr. Michalec, resulting in Mr. Michalec falling from the loading dock to the ground below. Mr. Michalec injured his leg and back. He needed stitches to close a cut and had to have an arthroscopic surgery on his knee to repair a torn meniscus. At the time of trial in July of 2017, Mr. Michalec was still treating for back problems.
American Supply and its insurance company blamed Mr. Michalec and his co-worker for the incident. They hired Jody Demarco of Forensic Consultants of North America as a safety expert. We hired Stephen Petty of EES Engineering Services as a safety expert. DeMarco opined that Mr. Michalec’s failure to use tire chocks was the cause of the incident. Mr. DeMarco theorized that the truck pulled away from the loading dock during loading, resulting in the dock plate slipping. Mr. DeMarco blamed Mr. Michalec for not checking the front wheels on his truck. Our expert, Mr. Petty, opined that the improper use of tire ramps by American Supply resulted in the truck sitting substantially lower than the dock, resulting in the dock plate being angled severely and sliding off the dock.
At trial, we were able to get the owner of American Supply to admit that he could not identify anything Mr. Michalec did wrong. We were also able to get the owner of the company to admit that his company did not follow the instructions on the tire ramps that they required customers to use during the loading process. The failure to follow the instructions on the tire ramps was a critical issue in the case because it resulted in the truck sitting lower and a more severe angle in the placement of the dock plate.
As for damages, American Supply and its insurance company asserted that most of Mr. Michalec’s injuries were due to preexisting conditions. However, we were able to get their medical expert, Dr. Joseph Bernstein, to acknowledge that he had no substantial criticism of Mr. Michalec’s treating doctors and that he could not say that Mr. Michalec’s continuing complaints of knee and back problems were not legitimate.
After a one-week trial in Philadelphia County, the jury returned a verdict of $573,000 in favor of Mr. Michalec. The jury assessed 100% of the fault against American Supply. The verdict was immediately paid and no appeal was filed.