03/26/07

Miner crushed by falling boulder wins $9.4 million

Meticulous trial preparation and an appealing client translated into a $9.46 million verdict for a paralyzed Wyoming miner.

“I think people really liked him, as well they should.  He’s very courageous and didn’t want any sympathy.  He wanted to get on with his life, and I think they wanted to give him money to do that,” said attorney Michael Cok of his client, Les Butts, who was paralyzed at age 31 when a 1,000-pound rock crushed him inside the cab of the mining equipment he was operating.

Cok and co-counsel Jim Fitzgerald showed jurors through written complaints and testimony of mine employees that the defendant mine manager and safety manager had known for 10 years about dangerous conditions that resulted in several accidents.

“It took a lot of work to garner it all.  There was a lot of [evidence] there and there were many, many, many documents.  There were lots of depositions,” Fitzgerald said.  “When you’re going up against three large law firms and a huge corporation paying for the defense, unrelenting preparation is the key.  The odds are not with you, no matter who you are.”

Lead defense attorney Joe Teig, who tried the case with attorneys from Hall & Evans in Denver and Williams, Porter, Day & Neville in Casper, Wyo., referred comment to Arch Coal Inc., which owns the Black Thunder Coal Mine where the accident took place.

In an e-mail statement, the company expressed disappointment with the verdict and asserted the accident was not foreseeable:  “While we deeply sympathize with Les Butts and the permanent injuries he sustained, we maintain that these employees were not at fault in the unforeseen highwall accident.”

The accident
Working at the foot of what’s called a highwall – a wall of dirt and rock anywhere from 100 feet to 200 feet high extending up from the pit of a coal mine at a 75 degree angle – Les Butts was operating a cable reel tractor at the Black Thunder Coal Mine near Gillette, Wyo., in 2001.

From the top of this wall, a 1,000 pound rock came loose a careened down the slope, landing on top of the tractor and crushing Butts inside.  The accident caused a spinal fracture that left Butts a paraplegic.

He also had a moderate traumatic brain injury.  He’s up and around, he drives, you talk to him and he seems somewhat normal, although he’s unable to work and has some memory problems,” Cok said.

Employers in Wyoming have statutory immunity for accidents if the employer pays into the workers’ compensation system.  That meant Cok and Fitzgerald had to file against the safety manager and mine manager, alleging reckless disregard and wanton misconduct.

It wasn’t difficult to find evidence to meet these standards.  After combing through stacks of documents in discovery, the plaintiff’s team decided to focus their trial presentation, documents and live witnesses on proving the managers know of these dangers and did nothing about them.

“They have problems with highwalls sloughing off,” Cok explained.  “They don’t want to move the dirt because moving dirt costs money.  They try and get [the coal] out moving the least amount of dirt.  It leaves very high walls, with pieces of dirt falling down.”  And that leads to dangerous conditions when employees are working hundreds of feet below.

The plaintiff’s team called a miner who testified that five months before the accident that paralyzed the plaintiff, he was nearly killed when rocks fell from the highwall.  He testified that he complained to the safety manager, yet no action was taken, Fitzgerald recalled.

“There was a lot of stuff like that, “ he said.  “The mine took the position that this was a highly unusual event, and it wasn’t.  We proved there were a lot of other similar incidents.  They took the position that when rock came off the highwall, it never [fell] as far as this piece of equipment.  We proved that wasn’t true, there had been other incidents of rocks striking equipment.”

During discovery, Cok and Fitzgerald found documents showing that miners had been complaining about unsafe highwalls for at least 10 years, and most recently just a month before the plaintiff was injured.

Cok got one of the defendants to admit on the stand that after he received several complaints from miners about highwall safety issues through a line-sponsored program that facilitated employees bringing safety concerns to management’s attention, he had all but one of the written complaints shredded.  He said he wanted to keep the complaints out of the media’s hands, Cok recalled.

“I don’t know how effective that was.  I always thought it was pretty damning,” Cok said.

The plaintiff’s team also told jurors that the mine could have reduced the risk of accidents simply by building lower highwalls.

Falling object protection
The other central argument in the case was that federal law required the tractor the plaintiff was driving to be equipped with falling object protection, but the defendants failed to provide it.

To demonstrate that a protective structure would have protected the plaintiff, Cok and Fitzgerald rigged up a crane with a large rock and dropped it onto a Caterpillar equipped with one of these structures.  They videotaped the demonstration and showed it to the jury.

“It just bounced right off without any damage,” Cok said.  “It showed the effectiveness.”

In contrast, the two pieces of sheet metal with a piece of foam board in between that constituted the roof of the plaintiff’s tractor crumbled like a house of cards.

Cok concluded the case by calling expert witnesses on damages, a physician to talk about the plaintiff’s injury and a life care planner.

The defense argued the claims in the case were based on hindsight and also blamed the company for ordinary neglect, Cok recalled.  “They said mining is dangerous, and things happen.”

After deliberating six hours, the jury delivered a $22 million verdict, apportioning 18 percent of the liability to the safety manager, 25 percent to the mine manager and 57 percent to the corporation.

Because Wyoming law prohibits liability suits against employers who pay into the state workers’ compensation system, the plaintiff can collect only $9.46 million – the amount apportioned to the two managers.

Plaintiff’s attorneys:  Mike Cok and Russ Dunn of Cok Wheat & Kinzler in Bozeman, Mont.; Jim Fitzgerald of The Fitzgerald Law Firm in Cheyenne, Wyo.

Defense attorney:  Joe Teig of Holland & Hart in Jackson, Wyo.

The case:  Butts v. Hampleman; Feb. 14, 2007; Campbell County District Court; Judge John Perry.

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Miner crushed by falling boulder wins $9.4 million
By Amy Johnson Conner

Lawyers USA