UBB civil suit 'unusual,' Ohio State law professor says - Business, Government Legal News from throughout WV

UBB civil suit 'unusual,' Ohio State law professor says

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An Ohio State University law professor said one of the latest lawsuits filed against Massey Energy officials for a miner's death in the Upper Big Branch explosion is interesting because it centers on allegations of emotional damage and not wrongful death.

Seeking compensatory and punitive damages, the family of an Upper Big Branch miner, Edward Dean Jones, filed the suit in Raleigh County Circuit Court against eight Massey and Performance Coal Co. officials, including former President and CEO Don Blankenship and Gary May, an Upper Big Branch superintendent who pleaded guilty to hindering U.S. Mine Safety and Health Administration investigations. 

"This is an unusual lawsuit in several ways," said Christopher Fairman, an Ohio State University law professor. "After a devastating mine disaster, you would expect wrongful death lawsuits to be filed against the company for negligent acts. In the most egregious cases of corporate negligence, an individual officer of the corporation might be sued personally if the officer participated in the tortious acts."

Family members assert they did not learn of Jones' death until five days after the explosion and instead were led to believe he was alive. They allege they encountered more emotional trauma after viewing Jones' remains.

The suit also claims Massey officials placed miners, including Jones, at risk by ignoring safety.

"All the allegations of disregard for mine safety that led to the accident have relevance to a wrongful death claim, but not much traction on the emotional distress claim of the family," Fairman said. "Put another way, what have the defendants intentionally done to the family to cause their injuries."

Fairman said the suit did not list much to support allegations of emotional damage except the assertion of false hope that Jones could be alive.

"This is a pretty slim reed for a negligent infliction of emotional distress, much less an intentional one," he said.

Fairman said he does not anticipate the civil suit having a big impact on criminal investigations, noting prosecutions will move much faster.  

"As the complaint notes, however, potential criminal charges may affect the civil case in that the defendants assert their rights against self-incrimination," he said.


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