Miner death suit begins in Boone

Publication: THE CHARLESTON GAZETTE
Published: 12/06/2007
Headline: Miner death suit begins in Boone
Byline: Ken Ward, Jr.

MADISON — Kevin Lupardus was a good man, lawyers told a Boone County jury Wednesday.

Lupardus loved his kids, Daniel and Kita Mae. He worked hard running dozers and diggers at Massey Energy subsidiary Independence Coal Co.’s Red Cedar Surface Mine.

Then, at about 2 a.m. on Nov. 20, 2004, the 41-year-old equipment operator was crushed to death. More than 1,000 tons of rock and dirt collapsed onto the cab of his excavator.

Now, lawyers for Lupardus’ estate are suing Massey and several related companies to try to win compensation for his children, now ages 16 and 11. They allege that Massey could have prevented the accident, but ignored safety precautions in favor of coal production. Trial began Tuesday at the Boone County Courthouse, with jury selection and continued Wednesday with opening statements.

“This case is about profits over safety,” said Bill Harvit, a Charleston lawyer who represents the Lupardus family.

Massey lawyer Al Emch told jurors that Lupardus was a good employee who tried to work safely. But Emch said preventing accidents like the one that killed Lupardus isn’t as easy as Harvit tried to make it sound.

“Accidents are totally preventable— 100 percent preventable — after the fact,” Emch said. “Monday morning, we can prevent them all.”

The Lupardus case is the latest in a series of legal actions that challenge Richmond, Va.-based Massey’s safety practices.

Federal officials are seeking $1.5 million in civil penalties and conducting a criminal investigation of the January 2006 fire that killed miners Don Bragg and Ellery Hatfield at the company’s Aracoma Alma No. I Mine.

Last week, Logan Circuit Judge Roger Perry ruled that lawyers for the Bragg and Hatfield families could question Gordon Gee, chairman of a Massey Energy Board of Directors safety committee, about the Aracoma fire. Massey had sought a court order to block Gee from having to give a deposition in the families’ wrongful death case.

Earlier this year, Massey’s Independence Coal reached a settlement with the families of miners Rodney Sheets and Billy Birchfleld. Sheets and Birchfleld died when they were run over by a huge truck at the Twilight Surface Mine on Sept. 17, 2003. Terms of the settlement were not disclosed.

At the time of his fatal accident, Lupardus was loading waste rock and dirt into trucks with his excavator. He was working near a highwall, a cliff like face of exposed rock and coal. The highwall collapsed onto his excavator.

“When the medical examiner performed the autopsy, they had to pry his hand off the control of the equipment,” Harvit told jurors. “That’s how violently he died.”

Harvit said Massey officials wrongly trained Lupardus to operate the excavator parallel to the highwall face, with the side of the equipment closest to the highwall. The company’s own safety guidelines advise working an excavator perpendicular to the highwall, so the miner’s cab is a safer distance from the cliff, Harvit said.

But operating the way Lupardus was trained is faster, avoiding having to rotate the excavator each time a load is being dumped into a truck, Harvit told jurors. The safer way “takes more time, and time is money, folks,” Harvit said.

Harvit also said Massey had Lupardus working within 15 feet of the highwall, less than half of the recommended safe distance. And, Harvit said, company engineers later fudged a map that they gave to government Investigators to make it look as though Lupardus’ excavator was nearly 30 feet away.

Emch said that Massey officials discovered problems with the map and distance estimate only the night before the trial.

Emch told jurors that Massey officials make It their practice for all workers to “watch the wall” at surface mines to avoid problems with highwall collapses. Inspections prior to Lupardus’ death showed no problems at the highwall where he was working, Emch said.

According to Emch, the Red Cedar mining sequence — and all contour-type strip mining — required Lupardus to briefly turn his excavator cab toward the highwall. It was Just bad timing that he did so just when the highwall collapsed, Emch said,

“Accidents do happen,” Emch said. “I’m going to use the word serendipity a confluence of all sorts of circumstances.”

Harvit showed jurors copies of Massey official Art Hates diary that indicated highwall safety problems at the company’s operations. Hale did not turn that diary over to government investigators, Harvit said, giving it instead to Massey lawyers.

Emch responded that those problems were not in the specific area where Lupardus was killed.

Before opening statements, Boone Circuit Judge William Thompson agreed with Massey lawyer Erin Magee that certain citations Issued to nearby Massey operations for highwall-related problems could not be used as evidence in the Lupardus case.

Thompson also ruled that the Jury should not be told that the U.S. Mine Safety and Health Administration inspectors who investigated Lupardus’ death issued two orders alleging “unwarrantable failure” by Massey to comply with safety rules.

MSHA investigators alleged that Massey did not establish and follow a safe ground control plan and allowed Lupardus to work too close to a dangerous highwall. Massey is appealing the citations, for which MSHA is seeking a total of $108,000 in fines. Thompson said that jurors should not be told about the citations because Massey’s appeal has not been completed yet.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.