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8/7/2019 Morgan complaint
http://slidepdf.com/reader/full/morgan-complaint 1/25
IN THE CIRCUIT COURT OF BOONE COUNTY, WEST VIRGINIA
TAMMY MORGAN, Individually
and as Administratrix of the Estate
of Adam K. Morgan,
vs. Civil Action No. ll-C-
cÇ(Q)WV'1r
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Plaintiff,
MASSEY ENERGY COMPANY,a Delaware corporation,
MASSEY COAL SERVICES, INC.,a West Virginia corporation,
PERFORMANCE COAL COMPANY,a West Virginia corporation,
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Comes now Tammy Morgan, individually and as the Administratrix of the Estate of
Adam K. Morgan, and sets forth her Complaint against the defendants named herein.
Introduction
This Complaint is filed against the named defendants as a result of a mine explosion at
the Upper Big Branch Mine (MSHA ID 46-08436) on April 5, 2010. Twenty-nine miners,
including plaintiff's decedent, Adam K. Morgan, were killed in this mine explosion and other
miners were severely injured. Based upon information learned through the investigating agencies
of the state and federal government, the plaintiff files this Complaint against the defendants
seeking compensatory and punitive damages as a result of the willful, wanton and recklessly
unsafe manner in which the defendants operated the Upper Big Branch Mine and caused the
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death of her decedent.
Defendant Performance Coal, as decedent's employer, is liable to the plaintiff for its
violation of West Virginia's deliberate exposure law whereas Performance, by its agents,
knowingly exposed the decedent to specific unsafe working conditions contrary to federal, state
and industry safe workplace regulations and standards.
Defendant Massey Coal Services, Inc., is an affiliated but separate company from
Performance Coal, but as a Massey Energy subsidiary, voluntarily or by direction of parent
Massey Energy, undertook certain engineering and safety duties at the Upper Big Branch Mine
which it failed, through its employees and agents, to perform in a reasonably prudent manner. As
such, Massey Coal Services, Inc., is liable to the plaintiff for its acts and omissions which
proximately caused the death of plaintiff s decedent.
Defendant Massey Energy Company, is the parent of, but separate from, Performance
Coal. Massey Energy, by and through its agents, including, but not limited to CEO Don
Blankenship and members of its Board of Directors, were intimately involved in the mining
activities at the Upper Big Branch Mine. Don Blankenship was actually aware of the unsafe
manner in which the Upper Big Branch Mine was operated as his involvement necessarily
included his knowledge of the staggering number of safety violations issued by safety authorities
to Performance Coal related to the Upper Big Branch Mine prior to the explosion. Members of
the Massey Energy Board of Directors likewise voluntarily assumed active duties and
responsibilities for the monitoring and oversight of workplace safety compliance at subsidiary
mines such as Upper Big Branch by way of a written settlement agreement to a shareholder
derivative suit executed on June 30, 2008. The intimate involvement by Don Blankenship in the
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activities at Upper Big Branch and his knowledge of the abysmal safety record of the mine reflect
a gross negligent or reckless indifference to workplace safety and as a result as an agent of Massey
Energy, Don Blankenship's negligent or reckless management in the operations at Upper Big
Branch make Massey Energy liable to plaintiff for the death of her decedent. Furthermore, the
negligent and reckless manner in which the members of the Board of Directors performed or
failed to perform the safety oversight and management duties they voluntarily assumed in the
settlement of the shareholder derivative suit, resulted in the Upper Big Branch Mine continuing to
operate when a reasonably prudent Board would have shut it down or made management changes
to ensure the mine was operated in compliance with state, federal and industry safety standards.
As such, Massey Energy is liable to the plaintiff for the death of her decedent by way of the
negligent and reckless acts of its Officers and its Board of Directors.
Facts
1. Plaintiff Tammy Morgan is the mother and personal representative of the Estate of
Adam K. Morgan who was killed on AprilS, 2010, in the mine explosion in the Performance Coal
Company Upper Big Branch Mine.
2. Plaintiff Tammy Morgan is a citizen and resident of Wyoming County, West
Virginia, and was duly appointed the Administratrix of the Estate of Adam K. Morgan on April
19,2010.
3. Defendant Performance Coal Company ("Performance"), is a West Virginia
corporation with its principle place of business located at Montcoal, West Virginia. It is engaged
in the business of extracting and selling coal from mining operations in Boone and Raleigh
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Counties which include the Upper Big Branch Mine. The West Virginia Secretary of State also
lists for Performance the d/b/a Upper Big Branch Mining Company. The Upper Big Branch Mine
encompasses areas in both Boone and Raleigh County, West Virginia, thereby placing the site of
the actions giving rise to this matter in whole or in part in Boone County, West Virginia.
4. Defendant Massey Coal Services, Inc. ("MCS"), is a West Virginia corporation
with its principal place of business in Julian, Boone County, West Virginia. MCS is a subsidiary
and affiliate of defendant Massey Energy Company, and provides to the parent's subsidiaries
safety and engineering services by directive of Massey Energy Company's corporate policies.
These activities undertaken by MCS included for the Upper Big Branch Mine, the promulgation,
dissemination, adoption and use of, monitoring and compliance with Massey Energy and MCS's
S-l safety standards and the provision of mine engineering services and advice from MCS to
Performance.
5. Defendant Massey Energy Company ("MEC"), is a Delaware corporation, with its
principal offices in Richmond, Virginia. MEC is engaged in the extraction and sale of coal from
mines it either directly owns and operates or from mines operated by its subsidiary "resource
groups" as they are called. MEC Executive and Board-level management voluntarily undertook
duties and responsibilities commensurate with the daily operations at the Upper Big Branch Mine.
6. Jurisdiction and venue are proper before this Court since the acts and omissions
giving rise to this action occurred all or in part in'Boone County, West Virginia, and defendant
MCS has its principal offices located in Boone County, West Virginia.
7. Decedent Adam Morgan was employed by defendant Performance as a
red hat miner at the Upper Big Branch Mine on and before AprilS, 2010.
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8. Defendants Performance, MCS and MEC ("Massey defendants") are, and at all
times relevant were, responsible for the supervision, safety and oversight of the Upper Big Branch
Mine. As such, the Massey defendants were responsible for providing safe working conditions at
the Upper Big Branch Mine on and before April 5, 2010.
9. Defendant Performance, by and through its management personnel at the Upper
Big Branch Mine, was responsible for the inspection of the working areas of the mine for safety
hazards and for the correction of all safety hazards discovered in the inspections.
10. Defendant Performance, by and through its management personnel at the Upper
Big Branch Mine, was responsible for compliance with all required and approved state or federal
mining plans applicable to the Upper Big Branch Mine, including ventilation, methane and dust
control plans.
11. Defendant Performance, by and through its management personnel at the Upper
Big Branch Mine, was responsible for the safe operating condition of all mining equipment in
conformity with the manufacturer's specifications and original design and in conformity with the
approved mining plans for the mine.
12. Defendant Performance, by and through its management personnel at the Upper
Big Branch Mine, was responsible for the removal, control or dilution of explosive methane gas
and coal dust on and before Apri15, 2010.
13. Previous to April 5, 2010, the Upper Big Branch Mine had an abysmal safety
record. The safety record at the mine dramatically declined between 2008 and 2010. As evidence
of the abysmal safety record of this mine, the following information was known to all Massey
defendants or easily available to their management since the information was a matter of public
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and corporate record:
a. The number of MSHA issued violations more than doubled from 2008 to
2009;
b. Proposed fines from MSHA inspectors, which factor in the seriousness of
the violations and the safety attitude of the mine managers, more than
tripled to $897,325.00;
c. Violations categorized as "serious and substantial" in 2009 alone reached a
total of 202, which is almost equal to the 204 such violations for the entire
2 year period before (2007 and 2008) combined;
d. In the first quarter of2010, there were 124 violations and 53 assessed
penalties totaling $188,769.00;
e. In December 2007, the mine was placed on the pattern of violations status
based on its safety record and but for a computer error at MSHA would
have been on pattern of violation status on and before AprilS, 2010;
f. In 2009, MSHA issued 54 withdrawal orders to the mine of which 48
included a finding of unwarrantable failure to comply with mine safety laws
and 4 involved a failure to abate previous violations;
g. In 2010, prior to the explosion, 7 withdrawal orders had already been issued
to the mine and 6 of those included findings of unwarrantable failure to
comply with mine safety laws and 1 involved a failure to abate a previous
violation;
h. In the twelve months preceding the mine explosion, the mine was cited 38
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times for mine ventilation violations and 37 times for unsafe accumulations
of combustible materials (coal dust).
14. With the number of mine safety violations which existed and had been allowed to
exist under the defendant's collective management of the Upper Big Branch Mine, on AprilS,
2010, the Upper Big Branch Mine was a catastrophe waiting to happen.
15. No reasonably prudent parent company such as in the position ofMEC would
have allowed such an unsafe operation to continue. Despite the knowledge of CEO Don
Blankenship that this mine was being operated in such an unsafe fashion; despite CEO Don
Blankenship's authority to shut the mine down or change its management; despite the knowledge
of the MEC Board that this mine was being operated in such an unsafe fashion; and, despite the
MEC Board's authority to shut the mine down or change its management, defendant MEC's
executive and board management allowed the mine to continue to operate.
16. As of this date, the state and federal mine authorities have conducted an extensive
investigation of the Upper Big Branch Mine explosion. That investigation has involved some 261
individuals being interviewed and testing of mine equipment and sampling of materials in the
mme.
17. As of this date, 18 Massey employed management level employees,
including MEC CEO Don Blankenship and Performance Coal President Chris Blanchard have
exercised their 5thAmendment rights against self-incrimination and refused to testify or explain
their actions and omissions which might have contributed to the mine explosion. Additionally the
head of security for the Upper Big Branch Mine was indicted in the United States District Court
for the South District of West Virginia for lying to federal authorities in the Upper Big Branch
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mine explosion investigation. Specifically, Hughie Elbert Stover illegally destroyed documents
requested by the federal government and was not truthful about his role and directives in warning
mine management at Upper Big Branch that mine inspectors were about to enter the mine. In
doing so, many known violations of mine safety law would be corrected before inspectors could
see them. As a result, mine safety officials were unable to view the actual day to day working
conditions.
18. Inasmuch as the safety violations which caused the April 5,2010, mine explosion
were the direct result of the manner in which the mine was managed by the defendants, the Upper
Big Branch Mine explosion was not an "act of God".
19. In the days and shifts preceding the explosion, numerous areas at and near the face
and on the belts headed outby were inspected by Performance management and found to be in
need of rock dusting which is the application of finely ground limestone dust to bind to and
prevent the suspension in air of dangerously explosive coal dust.
20. Despite the findings of the need for safely addressing explosive coal dust present
in the mine, mine management did not apply rock dust to the areas of the mine where the
explosive coal dust was noted.
21. Prior to and on April 5, 2010, Performance Coal utilized a longwall mining
machine to conduct mining operations in the Upper Big Branch mine. As designed by the
manufacturer, the longwall mining machine was equipped with water spray nozzles on its shear
head to prevent sparks when the cutting bits struck rock; to reduce the explosive coal dust
floating in and around the cutting head and to extinguish any flash fire or ignition that might occur
when pockets of methane gas were encountered.
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22. Prior to and on AprilS, 2010, Performance Coal with full knowledge of mine
management operated the longwall machine with many of the spray nozzles missing, broken or
even welded closed. As a result, the longwall shear head operated without legally mandated and
manufacturer specified water sprays. Additionally, bits on the shear were dull which resulted in
increased sparks when striking rock in the mining process.
23. Prior to and on AprilS, 2010, Performance Coal had encountered adverse roof
conditions in the headgate and tailgate side of the longwall section which in turn decreased or
adversely affected the ventilation of the longwall section.
24. The roof conditions were so adverse in the headgate of the active longwall section
that the headgate could not be used as the tailgate for the next longwall panel as originally
planned. As a result, Performance was forced to begin the development of a new tailgate for the
next longwall panel.
25. As a result of the adverse roof conditions encountered in the longwall
development area, production for the longwall was in jeopardy. The longwall panel being mined
on or about AprilS, 2010, was nearing completion and the next full panel was well short of
readiness for production as desired by MEC, MCS and Performance. As a result, production and
development pressures were placed on the mine managers at the mine and on the miners
themselves.
26. As a result of the production demands, the non production work such as rock
dusting, replacing and repairing the woeful condition of the longwall units water sprays and bits
was not performed even though mine safety laws require such work be conducted upon discovery
of the conditions.
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27. On April 5, 2010, shortly after 3p.m., upon information and belief the unsafely
maintained longwall unit encountered and ignited a pocket of methane gas. What should have
been a brief flash ignition extinguished by the water on the machine or with the consumption of
the small amount of methane gas, was instead converted into a management-made disaster as the
coal dust in the area, which is actually more explosive than methane or natural gas (which
contains mostly methane), and which was known to exist in unsafe quantities throughout the
mine, ignited and exploded with such force that it killed 29 miners in the mine, including
plaintiff s decedent.
28. Analysis of the materials on the ribs, roof and floor of the mine has revealed the
extent of the areas in the mine where impermissible levels of highly explosive and combustible
coal dust existed before the mine explosion and which became the primary fuel and driving force
in the explosion.
COUNT I - PERFORMANCE COAL - DELIBERATE EXPOSURE
29. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs
1 through 28.
30. As the employer of the plaintiffs decedent, defendant Performance Coal had a
legal duty to provide a safe work environment to plaintiff s decedent and other miners employed
at its Upper Big Branch Mine including compliance with all applicable federal, state and mine
industry safety standards.
31. On and before April 5, 2010, defendant Performance Coal exhibited a reckless
indifference to compliance with federal, state and mine industry safety standards as evidenced by
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its abysmal record of violations issued by state and federal mine safety authorities.
32. On and before AprilS, 2010, defendant Performance Coal violated federal, state
and mine industry rules, regulations and safety standards creating and exposing miners to specific
unsafe working conditions including miners and supervisors were instructed to disregard known
unsafe and dangerous working conditions; miners and supervisors were instructed to omit entries
reflecting hazardous conditions in inspection books; mine supervisors were not fully and properly
inspecting work areas of the mine; the approved mine ventilation plan was not complied with in
the mine; dangerous and explosive levels of coal dust existed; and mine equipment was
maintained and operated in a hazardous manner including missing and inoperable water sprays on
the longwall shear.
33. The actions of defendant Performance Coal on and before AprilS, 2010, as
set forth in paragraph 33 violated West Virginia Code 23-4-2(d)(ii), in that:
(A) Specific unsafe working conditions existed which presented
a high degree of risk and a strong probability of serious
injury or death;
(B) Defendant Performance, by and through its agents and by and through
inspection documents and other mining information, had actual knowledge
of the existence of the specific unsafe working conditions;
(C) The specific unsafe working conditions violated specific
state and federal mine safety statutes, rules or regulations,
and consensus written mine industry safety standards;
(D) That notwithstanding the existence of the facts set forth in
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subparagraphs (A) through (C), inclusive, of this paragraph,
Performance nevertheless intentionally thereafter exposed
plaintiffs decedent to the specific unsafe working
conditions; and
(E) Plaintiff s decedent suffered fatal compensable injuries as defined in
section one, article four, chapter twenty-three as a direct and proximate
result of the specific unsafe working conditions.
34. As a direct and proximate result of the illegal and unlawful conduct of defendant
Performance Coal, defendant Performance Coal is liable to plaintiff for damages as set forth in
West Virginia Code S55-7-6.
COUNT II - MASSEY ENERGY - NEGLIGENCE
35. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs
1 through 34.
36. MEC is a Delaware corporation which maintains its corporate headquarters in
Virginia. MEC owns 23 resource groups which include defendant Performance Coal Company.
37. Under West Virginia law, a parent company is legally responsible for injuries and
deaths which occur at its subsidiary when the parent company through its officers, executives,
employees or agents actually exercises control over or is intimately involved in the operation of
the subsidiary's facility.
38. Under West Virginia law, a parent company or an affiliated company is also
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legally responsible for injuries and deaths which occur at its subsidiary when:
a. the parent or affiliate company voluntarily assumes a duty to perform a
service for the subsidiary;
b. that service is necessary for the protection of third parties, such as
employees of the subsidiary; and,
c. the services are provided in a negligent manner resulting in harm or death
to those third parties.
39. By and through the involvement of CEO and Chairman of the Board Don
Blankenship, defendant MEC indeed exercised control over and/or was intimately involved in the
operation of Performance Coal's Upper Big Branch Mine. MEC CEO and Chairman Don
Blankenship directly communicated with mine management level employees of Performance Coal
by email, telephone, pager and facsimile related to day to day mining activities and had full
authority to direct and at various times directed their activities. For instance, on October 19,
2005, Don Blankenship directly sent a memo to all underground mine superintendents dealing
with a subject as mundane and germane to day to day operation of a mine facility as building of
overcasts and ventilation controls which stated:
If any ofyou have been asked by your group presidents, your
supervisors, engineers or anyone else to do anything other than run
coal (i.e. - build overcasts, do construction projects, or whatever),
you need to ignore them and run coal. This memo is necessary
because we seem not to understand that coal pays the bills.
This memo clearly shows that Don Blankenship as CEO of parent MEC was intimately involved
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in and controlled the operation of subsidiary facilities to the point that he could order line level
management at each facility to blatantly disregard and ignore orders issued by their presidents,
supervisors and engineers.
40. Prior to AprilS, 2010, MEC CEO and Chairman Don Blankenship was fully
aware of the abysmal safety record of the Upper Big Branch Mine and had full authority to take
corrective actions from the replacement of management at the mine itself to the closing of the
mine itself.
41. Additionally, in 2007 a shareholder derivative action was commenced against Don
Blankenship and fellow MEC Board members and/or officers Baxter Phillips, Jr., Dan R. Moore,
E. Gordon Gee, Richard M. Gabrys, James B. Crawford, Bobby R. Inman, Robert H. Fogelsong,
Stanley C. Suboleski, 1. Christopher Adkins, Jeffrey M. Jarosinski, M. Shane Harvey and Mark
Clemens. The shareholder derivative suit alleged that these individuals in their roles with MEC
operated the company in such a fashion that continued violations of safety and environmental
rules, regulations and statutes were commonplace, accepted and allowed. As a result of the fines,
publicity and litigation related to these safety and environmental violations, the plaintiffs in the
shareholder derivative suit alleged the value of the MEC stock was diminished and MEC itself
and the shareholders suffered damages as a result of the conduct of the defendants named in that
suit.
42. A settlement agreement was reached in the shareholder derivative suit which
became effective on August 30, 2008. The settlement agreement mandated particular Board-level
involvement, oversight, monitoring and reporting of not just MEC's compliance with
environmental and safety laws, but also the compliance of the subsidiary resource group's
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compliance with environmental and safety laws.
43. The obligations of the MEC Board and its officers for compliance with mine
safety laws and regulations is spelled out in great detail in the agreement:
a.A Board level Safety, Environmental and Public Policy Committee
(SEPPC) was to be formed;
b. A Company-wide "Safety Compliance Officer" was to be named and that
person was required to report to the SEPPC;
c.Safety Compliance Managers for each resource group such as defendant
Performance Coal were to report quarterly directly to the Safety
Compliance Officer on each Resource Group's compliance with worker
and mine safety laws, rules and regulations;
d. The Safety Compliance Officer or a designee was to attend every SEPPC
meeting and report regarding the issues under his/her purview;
e. The SEPPC was to reasonably inform the Board as a whole regarding the
company's compliance with all applicable mine safety laws and regulations
via a mine safety report;
f. The Board was to make a Corporate Social Responsibility report to its
shareholders on an annual basis that was required to include a report on the
Company's worker safety compliance;
g. The SEPPC was to annually review the Company's safety training
programs, recommend enhancements, report to the Board on key objectives
and progress of such programs and consider criteria and measurement
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protocols for ensuring all responsible personnel know all compliance
obligations of their work; and,
h. The SEPPC members must make reasonable efforts to attend all annual and
special shareholder meetings and be available to answer questions about
worker and mine safety compliance.
44. The duties and responsibilities voluntarily assumed by defendant MEC by and
through the MEC Board and more specifically by the Board members on the SEPPC involve the
monitoring, oversight and correction of mine safety compliance not just at the parent MEC level,
but specifically and explicitly of the mine safety compliance of the individual Resource Groups
including defendant Performance Coal and its Upper Big Branch Mine.
45. Defendant MEC, by the acts and omissions of its Board members, including Don
Blankenship and members of the SEPPC, negligently, recklessly, carelessly and with wanton
disregard failed to perform in a reasonably prudent manner the duties and responsibilities set forth
in paragraph 44 and voluntarily assumed and directly related to mine law safety compliance in the
operation ofthe Upper Big Branch Mine.
46. Any reasonably prudent Board member signing the shareholder derivative
settlement agreement and!or taking on the duties and responsibilities of a member of the SEPPC,
would have with any reasonable effort and concern been able to discover and then take action
related to the abysmal mine safety compliance record for the Upper Big Branch Mine. The
information was readily available to each and every Board member and especially the members of
the SEPPC.
47. Instead of performing through its Board members and director Don Blankenship
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the safety compliance and monitoring duties specifically and explicitly set forth in the settlement
agreement, defendant MEC reported instead the illusory statistic of "Non-fatal days lost" or
NFDL. The NFDL only measures days lost from injuries, some of which may occur without any
safety violation (i.e. a strained back from lifting). The NFDL is not a measurement of workplace
safety law compliance.
48. However, even when using the flawed NFDL, the Upper Big Branch Mine's
NFDL was 6.07 for 2008, which was 3.14 times higher than the MEC average. For 2009, the
Upper Big Branch Mine's NFDL was 5.81 or 3.47 times higher than the MEC average.
Therefore, even under the flawed logic of using the NFDL for safety compliance monitoring, the
Upper Big Branch mine was abysmal and even with MEC's organization a clearer safety outlier.
Yet defendant MEC did not replace management, make necessary safety changes at the mine or
close it.
49. To further compound the misleading use of the NFDL as a reasonable prudent
manner to monitor mine safety law compliance, evidence now shows that MEC and its Resource
Groups manipulated the reporting of injuries to keep the NFDL lower than it was in reality.
Resource group miners report being told to report to work even though injured so that an NFDL
would not have to be reported. Defendant MEC itself has admitted that it under reported NFDL's
as required by law.
50. A powerful motive to manipulate the NFDL for MEC and its Resource Groups
lies in the bonus structure for MEC and its Resource Groups. Resource Group management and
MEC management including Don Blankenship received large bonuses for lowering NFDL rates.
51. Based upon CEO Don Blankenship's intimate involvement in the activities at the
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Upper Big Branch Mine, Don Blankenship should have reported the abysmal safety compliance
issues at Upper Big Branch to the Board, or at a minimum to the SEPPC. Likewise, he should
have exercised his considerable power over the Resource Groups and either closed the mine or
replaced the mine management under whose watch the multitude of safety violations had mounted
or made sweeping safety changes at the mine.
52. On April 5, 2010, the specific unsafe working conditions set forth in paragraph 33
existed in the Upper Big Branch Mine because MEC management had negligently, recklessly and
with wanton disregard for worker safety failed to take corrective measures related to the poor
safety performance at the Upper Big Branch Mine and/or because MEC management had
negligently, recklessly and with wanton disregard for worker safety fostered and promulgated a
company-wide disregard of mine safety compliance. As a direct and proximate result of
defendant MEC' s negligence, carelessness and wanton disregard for worker safety, a catastrophic
explosion tore through the Upper Big Branch Mine on April 5, 2010, injuring and killing
plaintiff's decedent and 28 other miners.
53. As a direct and proximate result of defendant MEC's involvement in the unsafe
operations of its subsidiary's facility by and through its agents, including CEO Don Blankenship,
defendant MEC is liable to plaintiff for damages as set forth in West Virginia Code ~55-7-6.
54. As a direct and proximate result of the grossly negligent and reckless failure of
defendant MEC's Board and SEPPC to perform in any reasonably prudent manner the mine safety
compliance and monitoring duties voluntarily assumed in the written shareholder suit settlement
agreement, defendant MEC is liable to plaintiff for damages as set forth in West Virginia Code
~55-7-6.
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COUNT III - MASSEY COAL SERVICES
55. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs
1 through 54.
56. Defendant MC8 is a subsidiary of defendant MEC and is charged with providing
mine safety and engineering services to MEC Resource Groups including Performance Coal and
its Upper Big Branch Mine.
57. Prior to April 5, 2010, defendant MC8 provided safety and engineering services to
Performance Coal and in particular to its Upper Big Branch Mine.
58. As part of its duties and responsibilities, defendant MC8 oversaw the
development, promulgation, implementation and monitoring of the Massey comprehensive 8-1
safety program. All MEC Resource Groups and their mines are required to implement and
comply with the 8-1 program. Defendant MC8 is required to monitor each mine's compliance
with the S-l program and that duty includes the right to conduct S-l compliance audits.
Defendant MCS has the authority to designate a mine as 8-1 compliant or as non-compliant
setting forth the 8-1 deficiencies and corrective measures needed to be taken by the mine's
management.
59. Defendant MCS likewise had the authority to conduct and conducted Safety
Development Group (SDG) meetings which were to include safety and/or management members
of each Resource Group to discuss their mine safety law compliance and to seek out and exchange
information on measures to improve mine safety law compliance.
60. On and before April 5, 2010, agents and management of defendant MCS in the
exercise ofMCS's safety services duties either were aware of the abysmal mine safety law record
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at the Upper Big Branch Mine and its failure to meet S-1 guidelines and negligently failed to take
corrective actions or agents and management of defendant MCS were inexcusably negligent in the
performance of those safety services duties to the point that MCS could be unaware of the
abysmal safety record of a mine for which it had directly assigned duties of monitoring safety
compliance.
61. On AprilS, 2010, the specific unsafe working conditions set forth in paragraph 33
existed in the Upper Big Branch Mine because MCS agents and employees had negligently,
recklessly and with wanton disregard for worker safety failed to monitor the Upper Big Branch
Mine'ssafety
compliance and take corrective measures ina reasonably prudent
manner and/or
because MCS employees and agents had negligently, recklessly and with wanton disregard for
worker safety fostered and promulgated a company-wide disregard of mine safety compliance. As
a direct and proximate result of defendant MCS's negligence, carelessness and wanton disregard
for worker safety, a horrific explosion tore through the Upper Big Branch Mine on April 5, 2010,
injuring and killing plaintiffs decedent and 28 other miners.
62. As a direct and proximate result of the utter failure of defendant MCS to perform
in any reasonably prudent manner the mine safety compliance and monitoring duties assumed at
the direction of its parent company, defendant MCS is liable to plaintiff for damages as set forth
in West Virginia Code ~55-7-6.
COUNT IV-
SPOLIATION OF EVIDENCE
63. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs
1 through 62.
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64. Shortly after the Upper Big Branch Mine explosion at approximately 3:02 p.m. on
April 5, 2010, and in direct violation of state and federal mine law, employees and agents of
defendants MEC and Performance Coal, Christopher Blanchard and Jason Whitehead, entered the
Upper Big Branch Mine.
65. Responding agents of MSHA and the WVOMHSTwere unaware when arriving at
the mine that these individuals were in the mine and without any member of mine agencies with
them.
66. Not until approximately 7:30 p.m.did MSHA officials become aware that these
individualswere
in the
mine and unescorted. Atthat
time,MSHA officials ordered
Blanchard
and Whitehead from the mine.
67. Based upon evidence of discarded Self Contained Self Rescuer devices (SCSR's)
and footprints found by MSHA and the WVOMHST in their investigation, Blanchard and
Whitehead traveled to such deep areas of the mine that they were at or in close proximity to the
longwall section which has now been designated by both the regulatory agencies and defendants
as the ignition site and where vast amounts of critical evidence were located.
68. F or over four and half hours critical evidence, including the ignition site itself and
face mining equipment, were in the exclusive control of agents of the defendants in clear violation
of the law. Additionally, due to the illegal actions of Hughie Elbert Stover and others at
Performance Coal, critical evidence related to knowledge by defendant of the unsafe working
conditions by way of citations and violations were destroyed or lost when these illegal actions
which have led to the indictment, caused federal and state inspectors to inspect mine areas not in
the usual and customary conditions.
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69. The actions and conduct of the defendants' agents and employees may cause
critical evidence necessary for the plaintiff to prove and prevail in her case to be compromised and
subject to adverse jury consideration and may ultimately result in the inability of plaintiff to
prevail in her cause against the defendants before a jury.
70. The defendants' agents and employees violated a clear statutory duty with
their presence at the explosion site and the out by areas which suffered damage in the explosion.
71. As a direct and proximate result of the illegal actions of the defendants' agents,
spoliation of plaintiff s case may have occurred and should the plaintiff not prevail in her
underlyingcause,
plaintiff alleges she isentitled to recover in her
spoliationclaim the full
measure of damages she would have recovered as allowed under West Virginia Code S55-7-6.
72. Alternatively, plaintiff requests that the Court at the appropriate time provide the
jury in this matter an adverse inference instruction informing them that the evidence was altered
or compromised and as such they may infer that the evidence would not in its initial state have
been favorable to the defendants.
COUNT V - NEGLIGENT AND INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
73. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs
1 through 72.
74. Despite the presence of Christopher Blanchard and Jason Whitehead in the mine
for over four and half hours and despite their first hand knowledge that the explosion had killed
all the miners underground, defendants Performance Coal, MEC and MCS nevertheless did not
fully inform the appropriate regulatory agency representatives nor did they inform the families as
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information, including but not limited to the status of Adam Morgan and whether Adam Morgan
was still alive, and as a direct and proximate result thereof, suffered, and will continue to suffer in
the future, severe emotional and mental distress, trauma and harm, medical expenses, annoyance,
aggravation, and inconvenience and economic loss.
COUNT VI - PUNITIVE DAMAGES
79. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs
1 through 78.
80. The acts and omissions forming thebasis
of Counts II , III, and IV ofthis
Complaint were of such an extreme, willful, wanton, and reckless nature, and showed such gross
indifference to human life as to warrant punitive damages.
81. Punitive damages are justified to punish the defendants for their wanton acts which
result in the death of 29 miners, including plaintiff s decedent. These defendants by their
knowing continued operation of this rogue Upper Big Branch Mine before the explosion and by
their continued denial of responsibility for any cause of the explosion despite their knowledge of
their conduct before the explosion, the mine inspection records and the findings of the
investigation to date reflect the need for a punitive damage award to deter these defendants from
further operation of mines in this fashion. Punitive Damages will serve to deter the defendants
from continuing to defy state and federal mining safety regulations in their pursuit to profits, and
placing financial considerations ahead of basic minimal regard for human life, safety and dignity.
WHEREFORE, the plaintiff demands judgment against the defendants, jointly and
severally, for:
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a) compensatory damages in such an amount allowed under the law for plaintiffs
claims;
b) costs and attorney fees expended in prosecution of this matter;
c) pre-judgment and post-judgment interest as provided under the law; and
d) any and all other relief to which the Court deems plaintiff is entitled.
PLAINTIFFS DEMAND A TRIAL BY JURY.
TAMMY MORGAN, Individually
and as Administratrix of the Estate
of Adam K. Morgan,
Timothy ai (WVSB# 5839)
Guy R. Bucci (WVSB #0521)
L. Lee Javins (WVSB #6613)
D. Blake Carter, Jr. (WVSB # 9970)
1. Ryan Stewart (WVSB #10796)
BUCCI BAILEY & JAvms L.C.
Post Office Box 3712Charleston, West Virginia 25337
(304)345-0346
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