Heartbreaking notes from the WV miners

[Sauron]

Apparently several of the WV miners who died had enough time to leave notes to their loved ones, either on their bodies or in their lunchboxes:



I hope the lawyers rape the coal company for this.

[Legs]

Did any notes say "Wish you were here" ?

[Widget]

Originally Posted by Sauron

I hope the lawyers rape the coal company for this.

Curious as to what you do for a living?

[Stephen Maturin]

Originally Posted by Sauron

I hope the lawyers rape the coal company for this.

They'll certainly give it a go, but it won't be easy. State laws generally provide that workers' compensation benefits are an employee's exclusive remedy against his employer for injury, illness or death occurring in the course and scope of employment. Workers' comp recoveries are chump change compared to the damages available in a regular tort action.

Like most states, West Virginia has an exception to exclusive remedy rule under which an employee can recovery in tort if the employer's misconduct was especially egregious. From Section 23-4-2 of the West Virginia Code:

(2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". This requirement may be satisfied only if:

(i) It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or

(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:

(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

(B) That the employer had a subjective realization and an appreciation of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;

(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless thereafter exposed an employee to the specific unsafe working condition intentionally; and

(E) That the employee exposed suffered serious injury or death as a direct and proximate result of the specific unsafe working condition.

That's a difficult standard to meet, but not an impossible one. I had considerable success with employer intentional tort claims in Ohio under rules not much different from those quoted above. These cases are an assload of work, though. It's not uncommon to take fifty or more depositions even in relatively small cases. Expert witness fees are goddamn astronomical. The vast majority of these cases are dismissed before trial, all too often because the lawyers representing the plaintiffs only dabble in occupational injury cases and aren't really competent to handle complex civil litigation.

On a related note, I see that Wubba and Elaine Chao are busily defending the administration's mine safety efforts. Needless to say, they skip over the annoying facts that MSHA is grossly underfunded and hasn't had a full-time director for over a year.

[The Lone Ranger]

Originally Posted by Stephen Maturin

Expert witness fees are goddamn astronomical.

Hopefully, this isn't too much of a derail. Why are the fees so high? Is it because there are certain "star" witnesses who can and do demand any fee they want? If so, wouldn't there be some suspicion that they're saying what they're saying because they're paid to?

Years ago, I was asked as an "expert witness" if I'd be willing to testify on a case, and it never occurred to me that I'd be paid anything other than perhaps a small fee to cover my expenses. A guy was being sued by his neighbors for not clearing his yard of brush, and the neighbors complained that his yard was attracting "vermin." They called the university and asked an ecologist to come out and offer his or her professional judgment. My advisor sent me. I went, had a look around the place, and found evidence that wood rats were indeed living in a brush pile on his property. I told him that if he'd simply chip the wood and use it for mulch and do a few other minor things, that should probably solve the rat problem -- and that I'd testify to that in court. He cleaned up the brush pile and implemented a few other suggestions I made, and the neighbors withdrew the suit. I never had to testify, and wasn't paid anything by anyone, but I suppose that's not the normal way that "expert witnesses" are handled?

Cheers,

Michael

[Sauron]

Originally Posted by Widget

Curious as to what you do for a living?

Project management.

I'm hoping you already know the background of the coal company in question.
If not, then you might want to find out about them first.

[Beth]

When I heard about the letters this morning on the radio, I could not help but cry. Such a tragic situation! My heart breaks for the families of the miners.

[Julian]

I don't see the note as heartbreaking. The fact that the miners are dead probably is, but it seems to me that the note has some healing qualities to it. At least, the relatives now know that the person in question didn't die a painful death. That's gotta help them a little bit.

Julian

[Stephen Maturin]

Originally Posted by The Lone Ranger

Why are the fees so high? Is it because there are certain "star" witnesses who can and do demand any fee they want?

That's true in some types of cases. In others, there are so few experts available that they can damand and get top dollar. In still other types of cases, experts get paid a great deal simply because they make so much money in their non-litigation work. Medical negligence cases are a prime example. If you want a doctor to spend a day giving expert testimony in court, you'll have to pay him at least as much as he would have made that day in his regular practice.

In my experience, though, the primary reason expert witness fees are so high is the amount of work involved. The hourly rates of occupational safety experts and engineers are quite reasonable compared to the rates experts in other fields charge. However, they work a ton of hours in complex product liability or workplace injury cases. They have to review dozens of deposition transcripts, hundreds or thousands of pages of documents, conduct an inspection of the worksite or the injurious product, give depositions that can go on for days, provide ideas about what questions to ask the other side's expert, give trial testimony, etc. It all adds up.

Originally Posted by The Lone Ranger

If so, wouldn't there be some suspicion that they're saying what they're saying because they're paid to?

That's a big problem with some experts and very little problem with others. If the expert is basically a professional witness who works only for plaintiffs' lawyers, jurors will be extra suspicious.

[BDS]

Best Mine Disaster novel: Germinal by Emile Zola. Great book.

Another great mining novel: Angle of Repose by Wallace Stegner.

BDS -- former miner. I've gone down, as the miners say.

[Godwhacker]

I think the most heartbreaking part was the misinformation that all of the miners were alive.

Here in Pittsburgh, one of the local papers' early editions had a headline that read "ALL 11 ALIVE" in big font, front page. I saw one of these papers at work (they hand them out to the patients at my hospital in the morning) that morning, and thought that the miners had made it, but one of the clerks told me that they hadn't (except one) and that the paper had done a "Dewey Defeats Truman" kind of thing. Sad.