HWOJ: Workday Turns Tragic

How We Obtained Justice

Workday Turns Tragic 

PAUL MICHAEL HUGHE/SHUTTERSTOCK.COM

BY LANCE COOPER AND DREW ASHBY

A 21-year-old man stood on the blacktop, in the south Georgia heat, in front of an industrial mill’s 40-foot tall chemical tank. Two identical tanks were behind it. As a contractor, he and his coworkers were tasked with opening up the tanks so that another contractor could clean the inside with a high-powered pressure washer. They were working the mill’s shutdown. The mill ceases operations every 12-16 months so it can perform a tremendous amount of maintenance and repairs in short order; to minimize down time and increase profit loss. This requires substantial help from outside contractors, increasing the roughly 200 mill employees to a workforce of many thousands. Our client had been a contractor for only three weeks. He had no previous industrial experience. He had never opened a chemical tank. But he was smart and followed directions well. The defense would tell the jury he was “inexperienced” and a “rookie.”

Before the contractors could touch the tanks, the mill had to eliminate as many hazards as possible through a process called Lock Out Tag Out, and warn about any hazards that remained. As the mill told the workers that morning, the mill cut off all power and heat from the tanks 72 hours earlier, drained the tanks, flushed them three times with cold water, and held cold water in them for 48 hours to cool them down. The tanks ordinarily held caustic chemicals at 275°F. Only the mill knew that it never did any of those things.

The series of three tanks at issue, shown during a scene inspection over two years after the chemical spill. The chemicals spilled from the third of the three tanks (from left to right).

Even worse, two of the mill’s managers signed a Safe Work Permit (designed to warn about all safety hazards before the job begins) stating that there was no risk of thermal burns, no chemicals were trapped inside the tanks, and the tanks were certified safe to work on – more false representations that would soon play out in tragedy.

Opening up the tank was no small task. That morning, our client and his 10 coworkers removed the lid from the tank using a crane-like device. They then opened the many side doors (each held closed by 20 large bolts). Finally, they opened the two vertical doors on the bottom of the first two tanks (each held closed by another 20 large bolts), and cracked open the ones on the third about 1.5 inches. No chemicals came out.

Before then, the contractors could not be certain that some small amount of residual chemicals wouldn’t escape during the tank opening; perhaps a few drops or a few cups. So they wore thick head-to-toe rubber chemical suits on top of their work clothes while outdoors in the south Georgia September heat. Every opening was sealed with a duct tape wrap. The risk of heat stroke was high.

Having nearly completed their task, the contractors took a 20-minute lunch break. When they returned to the tank, they reluctantly began putting their chemical suits back on. Welcome relief arrived almost immediately. One of the mill managers who signed the Safe Work Permit said they no longer needed their chemical suits. And he was right. Every seal on the tank had been broken and no chemicals came out. The coast was clear.

The vertical doors on the bottom of the tank, shown in the closed position at a scene inspection. Each door has a 4-inch drain that was opened by the mill before the contractors arrived for work. No chemicals came out at any time before the incident.

The crew removed their chemical suits and began fully opening the bottom vertical doors that were cracked 1.5 inches. Minutes later, without warning, 200-500 gallons of hot caustic chemicals came spilling out onto our client’s body. The flow pinned him against the scaffolding.

Our client eventually pushed through the flow and jumped to the ground, where nearby workers cut off his clothes. As they gently hosed him down, the skin from his torso, arms, and thighs slid off onto the pavement. The head of the contracting crew – his stepfather – arrived less than two minutes later after sprinting from a nearby work trailer. He knelt beside his stepson, who repeatedly asked, “what happened?” His stepfather told him he did not know, but it wasn’t our client’s fault. He vowed to do everything in his power to figure it out.

The mill ambulance was on the scene within minutes. Our client had lost a lot of fluids. They needed to quickly replace them, but his veins were unreachable. Instead, they pulled out a drill, held the bit against our client’s shin, and began drilling in order to put the fluids directly into his bones. He then lost consciousness and would not regain it for two weeks; his body enduring multiple debridements and skin grafts in the meantime.

The Life Flight landed at the mill about 1.5 hours after the incident, which was about 30 minutes after the mill called its litigation counsel, and about 30 minutes before it began destroying the scene evidence – the only objective evidence of how and why this happened. They would not reveal their destruction until it slipped out at a deposition years later.

The vertical doors on the bottom of the tank, shown in the closed position at a scene inspection. Each door has a 4-inch drain that was opened by the mill before the contractors arrived for work. No chemicals came out at any time before the incident.

The mill promptly assigned its Safety Director to investigate the incident. He took a handful of pictures, spoke with a few mill employees, and conducted a purported root cause analysis that absolved the mill of any fault and blamed our client and his employer for everything. He completed this task in less than two hours, so that the mill could calm the remaining workers and employees at a safety meeting that afternoon. He never drafted an incident report. Nor did any other mill employee. The only report was done by the contractor.

When pressed at his deposition, the Safety Director – now a 30(b)(6) designee – admitted that his analysis was “speculation” because he didn’t even know how the chemical system worked. His testimony also eradicated the mill’s defenses. The mill’s response? They fired their counsel and retained a larger Atlanta defense firm, who immediately informed us that they had multiple new executive-level safety witnesses who would contradict their corporate designee. And perhaps realizing the fundamental importance of the issue for the first time, the mill also said it would deny that its employee ever told our client or his coworkers to remove their chemical suits – despite five witnesses saying otherwise.

The remainder of discovery continued in the unfortunate way that far too many cases do: obfuscation, hiding documents, frivolous claims of privilege, and motions to compel that were thankfully granted. These tactics are a scourge on our judicial system and a waste of our scarce judicial resources, particularly in rural Georgia counties where many judges have no law clerks to assist them. Pressing the defense hard and never letting off may be one of the better tactics against this, but it takes substantial time and dedicated effort to master every detail of the case.

We believed one of the most important issues in the case was the mill’s destruction of the scene evidence. The mill disagreed. They first claimed that there was no such thing as scene evidence. They abandoned that argument after we presented to the judge. It then evolved into a “the scene evidence was preserved by a handful of pictures” defense. When that was disproven, the mill then changed course again, arguing that “preserving the scene evidence wouldn’t have mattered anyway.”

Defendants, like the mill here, often claim that plaintiffs are “speculating” when they argue about what the missing evidence would have shown. And they are sometimes right. They generally fail to realize, however, that their claims of speculation are grounded in the very speculation they claim is improper. Without the evidence, or their documentation of it, no one knows. When the defense raises the false spectre of “speculation” after they spoliated evidence, you must hold up a mirror to them in front of the court and reveal not only their own speculation, but how they will benefit from it in light of the evidentiary void that they created.

The Court allowed three separate oral arguments, at different times, on the motion. We requested that the Court rule before expert discovery began. We disclosed our spoliation expert early, but the defense refused to do so on their end – arguing in seeming perpetuity that they needed more time. Wanting to see all of the evidence, the Court allowed expert discovery to proceed without a ruling. Our initial concern gave way to reason. We took a wait-and-see approach, knowing that the defense may be emboldened by a delayed ruling and lead with their chin in expert discovery. And so they did.

The defense put up two experts. They both toed the previous line, opining that the missing evidence proved the mill’s blamelessness. But they also took a giant leap forward. Previously, the spoliation infected only the “how did this happen” part of the case, which had nothing to do with the mill’s only defense (i.e., our client removed his chemical suit too early). Now the experts used the missing evidence to “prove” that our client improperly removed his chemical suit. The defense had chosen to infect their entire case with the spoliation issue. The Court took notice.

Settlement discussions were not fruitful. Our client desired to settle the case so our first offer was a hair below $10 million, to break the eight-figure fight from the beginning. The mill’s highest offer was $2.5 million, which they later raised to $4 million hours before trial. They rejected a mediator’s proposal of $6.5 million after the Court sent us back to the table. The root problem was something both unfortunate and increasingly more common: internal insurance squabbles. The defense had three carriers who were fighting about issues as basic as who pays in what order. They could not agree on anything. Many corporations believe it savvy to seek contractual indemnification from everyone they can. They often fail to realize that they are buying little more than an extended fight that results in cases going to trial that they could otherwise settle. In this case, their recalcitrance cost them many millions of dollars.

The Court granted our spoliation motion two days before trial, ordering 10 rebuttable presumptions instead of the issue preclusion we sought. But the Court included critical language in its charge that we proposed: “Each of these presumptions may be rebutted by the Defendant by producing evidence to the contrary. If the Defendant fails to rebut these presumptions by the preponderance of the evidence, then the jury will be bound by the presumptions. . . .” Many orders do not give the jury guidance on what it means to rebut or how it can be done. This order was likely more helpful than issue preclusion because we used it as club against the defense at every opportunity. Almost every defense witness faced questions about their spoliation and the “evidence” they had to rebut them. There was no evidence to rebut, of course, because they had destroyed it.

Trial was too long. We picked a good jury, which took one day. Our opening was strong. And we put up our case in 2.5 days. The defense took the remainder of the 1.5 weeks, preferring to end the days early and drag the case out. We sensed the jury was getting weary and began cutting our cross-examinations. They put up their experts for a combined four-plus hours. We crossed one for about 20 minutes, and the other for less than five.

Closing was very strong for us. The defense did not give a number, and did not have a compelling story. They no longer claimed that our client and his employer were 100 percent at fault, contradicting the testimony of their witnesses. We asked for about $15.5 million.

The jury was out for a little over 7 hours over two days. They asked only two questions. The first, 45 minutes into deliberations, sought a copy of the spoliation charge. The parties declined and the jury was re-charged. The second, the following day, was to be re-charged on punitive damages. The excess adjuster who had watched the entire trial never raised her offer, though we negotiated a high-low that ultimately paid the entire verdict.

The jury found in favor of our client. Their verdict was for $13,358.417.13, a record verdict in that county. They apportioned 74 percent of fault to the mill, 24 percent to our client’s employer, and 2 percent to our client. The verdict was healing and very emotional. Our otherwise stoic client began weeping. His four year-long journey of being blamed for everything by a multibillion-dollar corporation had finally ended. He was vindicated by a jury of the mill’s peers. He could finally move on to a new chapter of his life; one focused on moving forward instead of looking back. And that is exactly what he has done.

ABOUT THE AUTHORS
Drew Ashby is the founding partner of The Ashby Firm in Marietta where he specializes in catastrophic personal injury and product liability. Drew is a graduate of the GTLA LEAD Program and current member of the Verdict Editorial Board, Civil Justice PAC Board of Directors, and GTLA Executive Committee. He can be reached at drew@ashbyfirm.com.

 

Lance Cooper is the founding partner of The Cooper Firm in Marietta and represents clients in catastrophic injury and wrongful death cases. He specializes in product liability cases involving automobile design and manufacturing defects. Lance can be reached at lance@thecooperfirm.com.

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