February 2008 capitol observations



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Partial Settlement Reached In Big Dig Wrongful Death Lawsuit
After weeks of negotiations, the family of the woman who was killed when a Boston, Massachusetts “Big Dig” highway tunnel collapsed on her car has reached a $6 million settlement with the epoxy supplier on the project. The company, Powers Fasteners Inc. agreed to settle the lawsuit filed in 2006 by the victim’s family. Ms. Milena Del Valle, 39, was crushed on July 10, 2006, when 26 tons of concrete ceiling panels came crashing down as she and her husband drove through a tunnel. Her husband suffered only minor injuries. Investigators determined that the ceiling collapsed because workers secured it with a fast-drying epoxy that was not safe to use for overhead loads.
Powers Fasteners, which is a New York company, is one of 15 Big Dig contractors and agencies that were sued by the victim’s family. It’s the only company to face criminal charges resulting from the collapse. The company was indicted in August on a manslaughter charge. Prosecutors accuse Powers Fasteners of failing to warn Big Dig contractors that its fast-drying epoxy glue was unsafe to use to suspend heavy ceiling panels and had a tendency to slowly pull away over time. Company officials insist they informed engineers overseeing the project that the fast-set epoxy was intended only for "short term loading." The company contends it filled an order for its Standard Set epoxy for use in the ceiling and never knew that its Fast Set epoxy was used.
The wrongful death lawsuit claims tunnel contractors, subcontractors, and others involved in the project were "negligent, grossly negligent and/or reckless in selecting and installing more than 1,500 unsafe and defective bolts in the tunnel project." None of the other defendants in the civil case have settled with the victim’s family. The death led to tunnel and road closures and caused a public furor over the Big Dig project, which has been plagued by leaks, falling debris, delays, and other problems linked to faulty construction. The Big Dig is the most expensive highway project in U.S. history has been a virtual nightmare for lots of political figures in Massachusetts. It’s a miracle that there have not been any other accidents resulting in fatalities.
Source: Associated Press

Another Big Dig Settlement
In a related matter, contractors will pay more than $450 million to settle the State of Massachusetts’ lawsuit arising out of the Big Dig project. Bechtel/Parsons Brinckerhoff, the consortium that oversaw design and construction of the nation's costliest public works project, will pay $407 million to the state. Others will pay the rest of the settlement. As a result of this agreement, criminal charges were dropped.
Source: Associated Press

Lawsuit Filed Against Mall Arising Out Of Deaths
A lawsuit has been filed in Florida for two deaths on the premises of a mall in Boca Raton. The mall had been "put on notice" about security issues at the mall, but allegedly failed to take any measures to protect its patrons. The wrongful-death lawsuit involves the deaths of a mother and her young daughter who were killed at the mall. The owner of Town Center, Simon Property Group, is the sole defendant in the lawsuit. After the incident, Boca Raton City Council members blasted mall officials for their response after the shooting. A carjacking and abduction at the mall reported back in August of last year was not appropriately dealt with in terms of security and public awareness, according to the lawyer representing the plaintiff in this lawsuit.
The mother and her 7-year-old daughter were found in December bound and shot in their SUV after apparently being forced to withdraw money from an ATM. The lawsuit contends that both Boca Raton police and mall patrons had put Simon officials on notice about "certain serious security problems," and that mall officials acted with reckless disregard for patrons' safety by failing to take needed security measures. It’s alleged that Simon should have anticipated that violent crimes could occur on the property, but failed to provide adequate security personnel to protect patrons.
After the deaths, plans for a new police substation and a proposed enhancement of its surveillance-camera system at the mall were announced. The family says one of the main purposes of their lawsuit is to make sure that property owners who invite people onto their premises for business purposes protect those patrons. They don’t want to see what happened in this case happen to another family. Unless the owners and operators start paying more attention to security – because of rising crime that affects them – there will be a corresponding rise in lawsuits. David Shiner, a lawyer from ­­­Boca Raton, Florida, is representing the family.
Source: South Florida Sun-Sentinel

Allstate Pays Homeowner $995,000 For Concorde Jet Damage
Allstate Insurance Co. has agreed to pay $995,000 to a Brooklyn, New York, couple whose house was badly damaged by vibrations caused by an Air France Concorde jet nearly five years ago. The homeowners had received a $1.15 million verdict against Allstate in a trial in a Manhattan state court. Allstate then filed a notice of appeal. The homeowners had filed suit after Allstate refused to pay for damage to their 12-room concrete and steel house created by vibrations from an Air France Concorde as it took off from New York’s John F. Kennedy airport back in 2002. The lawsuit alleged that the supersonic jet struggled to gain altitude, flew low over Jamaica Bay, and buzzed the areas near the home. Other residents in the area complained about shaking foundations and cracking plaster in their homes.
Following the ear-splitting takeoff, the homeowners said their home began leaking during rainstorms. Water seeped through cracks that had opened in concrete blocks they used to build the waterfront house on Jamaica Bay in 1990. Allstate had insured the house since it was built in 1990. Allstate had refused to pay the claim, saying bad construction and poor maintenance had caused the leakage problem. Testimony at trial was given by six engineers and a noise expert from the Port Authority. The Concorde, which was used only by Air France and British Airways, was taken out of service by both carriers in 2003.
Source: USA Today

Fines Issued In South Carolina Fire
The owners of a Charleston, South Carolina, furniture store that burned down and killed nine firefighters have agreed to pay $13,110 in fines to state regulators. The Sofa Super Store was initially fined $32,775 for three violations in the June 18, 2007. Nine firefighters were killed – the nation's greatest loss of firefighters since the terrorist attacks on the World Trade Center on September 11, 2001. The store was fined for having padlocked doors and cited for fire doors that failed to work. The business was also fined for not having an emergency action plan in place for its employees. The store also agreed to review fire safety procedures at its other locations. The settlement must be approved by the chairman of the state occupational safety review board.
The city of Charleston had earlier agreed to pay $3,160 in fines arising out of the fire. The city was cited for failing to enforce requirements on protective gear and breathing equipment, and not having written procedures for command at fires. The city has since changed its protective equipment requirements. Officials still have not announced a cause for the blaze, although authorities have said the fire began near a loading dock where employees said they took cigarette breaks. Needless to say, not everybody is happy with the fines. Roger Yow, president of Local 61 of the International Association of Firefighters, is one person who isn’t and with good reason. He believes the modest fines will do little to encourage businesses to boost safety and prevent the future loss of life. I tend to agree with that assessment.
Source: Insurance Journal

Students In School Fire Settle Lawsuit
Two teenagers, who were badly burned when a chemistry experiment burst into a ball of fire at Western Reserve Academy in Ohio, have settled their lawsuit against the private boarding school for $18.9 million. The female students and their families will use part of the settlement to hire a nationally recognized education-safety expert to create a program that will prevent similar accidents. The families of the victims will spend at least $100,000 to hire this expert to improve school safety measures.
One of the students suffered burns over 46% of her body. The other was burned over 18% of her body. Both suffered physically and emotionally as a result of their burns. They were in extreme pain over a long period of time. The pain was so intense that one of the students, who has undergone at least 16 surgeries with more to come, said "death became very alluring” and would have been “an escape from pain.” The other student has undergone at least three procedures with more scheduled. The two courageous young ladies are now each 17-years-old. They attend Wellesley College and Harvard University respectively.
The two cases were settled without the necessity of a trial and approval by the court took place just before Christmas. Interestingly, one of the students scored 2392 on her SAT - a near-perfect mark - only two months after the fire. The second student is taking the first steps toward her goal of becoming a plastic surgeon. Interestingly, she had wanted to do that before the fire, not as a result of it. The settlements were for $13.1 million to one student and $5.8 million to the other.
The teacher at the school was demonstrating how burning chemical salts produce different colors, with the aid of methanol burning in lab dishes, when the flash fire occurred. Aprons and protective eyewear were available and were supposed to be used, but they were not. It was significant that the contract that students had to sign before taking the lab class required use of the safety gear. The teacher invited the students to gather too close to the experiment, introduced more methanol when the flames diminished, failed to perform the experiment behind a safety shield at least 10 feet away from the students, and failed to use a vent system that would have prevented the fireball that ultimately engulfed the students. This was a tragic accident and one that was clearly preventable.
Source: Plain Dealer

Jury Awards $12 Million To Mother Of Slain Tenant
A jury in California awarded $12 million recently in a wrongful death lawsuit against owners of a Burbank apartment over the 2004 rape and murder of a tenant. The jury found Scott Villa Apartments and Francis Property Management, Inc. guilty of negligence in hiring, training and supervising a maintenance man who is considered a suspect in the killing of the tenant. The 30-year-old tenant was a financial analyst for Warner Bros. studios who vanished after leaving work on August 17, 2004. Two weeks later, her body was discovered in the trunk of her car near Chinatown.
The victim’s mother filed a lawsuit contending that the killer was a convicted felon and registered sex offender. The suspected killer had been convicted in 2006 of burglarizing apartments in the complex and sexually battering a housekeeper. A police detective testified at trial that the man is the only suspect in the murder of this tenant. In their ruling, jurors agreed that the maintenance man raped and murdered the tenant.
The lawsuit blamed the victim’s death on the lack of a background check before the convicted felon was hired as a maintenance man and given access to all the apartments. Since this man was a convicted felon and a registered sex offender, had a background check been carried out, the defendants wouldn't have hired him and the victim would still be alive. Lawrence Grassini, a California lawyer, represented the victim’s family and did an outstanding job.
Source: Associated Press


***WORKPLACE HAZARDS
BP Should Be Working Hard To Improve Safety
It is quite obvious BP PLC has had its safety problems over the past several years. The company’s U.S. operations have experienced a series of safety issues of its own making. The oil giant's two largest U.S. refineries and its oil field at Prudhoe Bay in Alaska are expected to operate at capacity for most of the year for the first time since 2004. But the main issue isn't whether the London-based company has fixed problems that caused a deadly March 2005 explosion at its refinery in Texas City, Texas. The real question is whether BP has changed its corporate mindset when it comes to safety. The refinery blast was the first and most serious in a string of disasters that included oil spills from BP's pipelines on Alaska's North Slope. It appears that BP Chief Executive Tony Hayward, who took the reins in May, has refocused the company on operational integrity while avoiding the more high-profile role adopted by his predecessor, Lord John Browne.
Cost cutting and a lax safety culture were to blame for the explosion at Texas City, according to a report issued in March by the Chemical Safety and Hazard Investigation Board. The explosion, which killed 15 and injured more than 170, was one of the worst U.S. industrial accidents in years. The conditions were described as the worst ever seen by the former chairwoman of the safety board.
An investigation headed by former Secretary of State James Baker into safety at all of BP's U.S. refineries found similar problems with the company's safety culture, although it didn't focus on the issue of cost cutting. Many believe that BP is now trying hard to improve safety at U.S. refineries. For example, the company has replaced the devices that were responsible for the Texas City explosion. It has also eliminated their use in refining units that process "heavier than air, light hydrocarbons. The company plans to spend an average of $1.7 billion annually between 2007 and 2010 on the integrity and reliability of its refineries, up from $1.2 billion in 2005. While changing the culture will be difficult, it is an absolute necessity. In October, the company pleaded guilty to a criminal violation of the Clean Water Act for failing to properly maintain its pipelines on the North Slope of Alaska, resulting in several large oil spills in 2006. Hopefully, BP is now making safety a top priority at all locations.
Even with BP’s assurances, it’s obvious that BP still needs to work harder and make progress on safety issues. A worker was killed in an accident on January 14th at the company's Texas City refinery. William Gracia, an operations supervisor who had worked at the refinery for 30 years, died from head injuries suffered when the metal lid of a pressurized water-filtration vessel he was preparing for restart blew open. OSHA is now investigating this latest incident. Mr. Gracia's death is an indication that the company's safety performance is still inadequate.
Source: Wall Street Journal

Lawsuit Filed By Three Workers Injured In California Oil Field Explosion
Three contract workers injured in an oil field explosion in California last year have filed suit against the company that operates the oil reserve. The workers were injured when a highly pressurized gas line exploded at a Taft, California, oil field in February of 2007. Their suit alleges Occidental of Elk Hills Inc. knew the pipeline needed to be repaired and consciously disregarded their safety by allowing them to work nearby.
Source: Associated Press

GM Settles Retirement Funds Lawsuit
General Motors Corp. has agreed to pay $37.5 million to settle a class action lawsuit brought by employees and retirees for claims involving company pension and retirement funds. Employees and retirees suffered losses when company stock held in 401(k) plans lost value. The lawsuit, which was filed in 2005, charged that GM invested too much of its own stock in employees' retirement funds. The suit came as GM was struggling financially and its accounting was being reviewed by the Securities and Exchange Commission.
As part of the settlement, retirees will be offered heavily discounted financial counseling services from Ayco, a subsidiary of Goldman Sachs. In total, the financial counseling services, which typically are offered only to senior executives, are valued at $15 million. At issue in this case is whether GM "breached their fiduciary duties of prudence and loyalty by allowing, encouraging and maintaining a significant portion of the plans' assets in GM stock." It was alleged that GM had "failed to take any meaningful steps to prevent the plans from suffering losses as a result of the plans investment in GM stock and the company's matching contributions in GM stock."
The Employee Retiree and Income Security Act, which was enacted by Congress in 1974, imposes strict requirements to ensure employers invest retirement funds wisely. In the settlement, GM has also agreed to keep in place structural changes it made to its 401(k) plans. GM stopped automatically making matching contributions in GM stock in 2007. Instead, GM gives employees matching contributions based on their investment selections. About 260,000 employees and retirees were participants in the plans, which held assets of $21 billion as of 2003, according to court documents. The plans, with more than $5 billion in GM stock, lost hundreds of millions of dollars when the value of GM shares sank by more than 75%, from about $95 a share during the time period covered by the class action to about $23 a share. A federal court in Detroit will have to approve the settlement.
Source: Detroit News

Religious Bias Alleged In EEOC Complaint Against ConocoPhillips
The U.S. Equal Employment Opportunity Commission filed a religious discrimination lawsuit in December against ConocoPhillips on behalf of a worker at its Bayway Refinery who claims his request for a schedule change so he could attend church on Sunday mornings was refused. The federal lawsuit, filed in New Jersey, alleges that Clarence Taylor, a pipe fitter who has worked in the Bayway Refinery since 1975, was involuntarily placed in 2006 on a 12-week assignment requiring him to work Sunday mornings. Mr. Taylor regularly attends church on Sunday mornings and helps in the preparation for services. So, he asked ConocoPhillips management that his schedule be modified so he could continue to attend Sunday morning services. According to the lawsuit, the only option ConocoPhillips gave Mr. Taylor was to use his vacation time, which would have been depleted by the end of the three-month shift.
While his first two vacation requests for Sundays off were granted, ConocoPhillips refused Taylor's next request. As a result, the employee could not attend services for two months, according to the lawsuit. Spencer H. Lewis, district director of the EEOC's New York district office, made this significant observation:
If reasonable alternatives exist, the law does not allow an employer to force an employee to choose between keeping his job and practicing his faith. ConocoPhillips did not meet its obligation to explore non-disruptive alternatives, such as job swapping, that could have accommodated this man's religious practices.

It seems pretty clear that companies should work with their employees to allow them to attend church services and to practice their faith. If they refuse to do so, it now appears the EEOC will get involved. I really believe this is a good development.


Source: NewsDay

University Settles Harassment Lawsuit
Ohio University (OU) has agreed to pay $225,000 to a former photography student to settle claims that she was sexually harassed by a former art professor. The victim, who has graduated, will receive $100,000 from the university and $125,000 from its insurer. A lawsuit was filed in U.S. District Court alleging that OU failed to promptly respond to her complaints of harassment against the former chairman of the university's sculpture program. The professor was suspended in October 2005 and later resigned as OU sought to strip him of tenure for violating the Athens school's policy against sexual harassment. The plaintiff, who now is 28 and lives in New York City, said that she complained to OU officials about the professor's "unwelcome and unwanted" advances, beginning in 2003.
The professor repeatedly made remarks of a sexual nature, left the student gifts and messages, took photos of her without her knowledge and showed up at her house "professing his love for her," according to allegations in her lawsuit. After an investigation of sorts, OU officials concluded that the man had "engaged in a pervasive pattern of questionable conduct" over several years that involved more than one student. In an unrelated sexual-harassment case, OU paid $350,000 in 2005 to a student who said she was coerced into posing topless by the former director of the School of Visual Communication. The sculpture program's chairman wasn't punished until two years after the student first complained, according to her lawsuit. Clearly, that sort of conduct by a professor at a school – or any employee for that matter – can’t be tolerated.

Source: The Columbus Dispatch



Firefighter Wins Lawsuit Against City

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A jury has awarded $1.17 million to a black former Pasadena Firefighter who said he was forced to retire after complaining for five years about other firefighters leaving blood, urine, and feces in his bedding, and scrawling a swastika on his equipment. The penalty was just the latest case of a black firefighter alleging discrimination against a fire department in Los Angeles and surrounding communities. The jury found that the plaintiff’s supervisors and co-workers were guilty of inappropriate actions and that a captain referred to him by the "N" word.
The plaintiff says he endured racially-motivated attacks for five years. Numerous complaints were filed with his supervisors, but instead of things getting better, they were said to have gotten worse. Racial discrimination in the workplace can’t be tolerated and employers must work to make sure that it is eliminated to the extent possible. In my opinion, most employers realize that the workplace must be free of discrimination. Those who don’t realize it or simply don’t care will ultimately pay a price for it.
Source: Los Angeles Times

Lockheed Settles Racial-Discrimination Suit
In a similar case, Lockheed Martin Corp. has agreed to pay a former African-American employee $2.5 million to settle a discrimination suit brought by the Equal Employment Opportunity Commission. It’s being said this settlement is the largest individual racial discrimination payment obtained by the agency. The EEOC, which noted that racial harassment complaints have more than doubled since the early 1990s, believes this settlement will encourage others to pursue legitimate cases.
Companies must pay more attention to individual discrimination cases and not devote most of their resources to class action suits. In a 2005 lawsuit filed by the EEOC against Lockheed in U.S. District Court for the District of Hawaii, the EEOC claimed that an aviation electrician, who had been employed by the company from 1999 to 2001, was subjected to racial harassment by co-workers on a daily basis and to threats of retaliation -- including threats of lynching and other death threats -- once he complained to supervisors. The EEOC said that according to testimony in the case, the company refused to discipline the harassers. Although Lockheed disputes the EEOC's version of facts in that case, it did settle the matter.
The settlement in the most recent case comes amid rising numbers of racial-discrimination complaints filed with the EEOC, the agency that enforces federal laws prohibiting employment discrimination. EEOC officials said such complaints reached nearly 7,000 in fiscal 2007, up from 3,268 in fiscal 1990. In 2006, the agency launched a campaign to heighten education about and enforcement against racial discrimination in the workplace.
Source: Wall Street Journal

Target Settles Claims Over Vacation Claims
Target Corp. has agreed to pay as much as $10 million to settle California workers' claims that they weren't paid for earned vacation days. The settlement, according to a summary filed in federal court in Oakland, California, resolves a class action lawsuit alleging Target, before January of 2007, required workers to forfeit earned vacation pay and didn't pay fired workers a pro-rated share of their earned vacation time. As many as 270,000 current and former Target workers may share in the settlement funds. The settlement applies to folks who worked for Target in California from 2002 to 2006.
Source: Houston Chronicle

Worker Dies In Machine-Related Accident At Steel-Cutting Company
James Hizer, who had been laid off after 27 years of working at a job, took a low-paying, blue-collar job in an effort to feed his family. After being on his new job for five weeks at a Streetsboro, Ohio, steel-cutting company, Mr. Hizer was killed. While working alone on the midnight shift, the worker, a 58-year-old college graduate, was trapped and suffocated inside one of the machines he was operating. A wrongful death lawsuit was filed by his family. The jurors who heard the lawsuit awarded the Mr. Hizers widow $2 million in compensatory damages and $1 million in punitive damages against Singer Steel.
James Hizer was hired by Artisan Industries Inc., a company doing business with Singer Steel. He had worked for years as a white-collar computer technician when he was let go from his job at Greer Steel. Despite two college degrees, his job search took nearly three years and he felt fortunate to get any job. The worker was on the midnight shift at Singer Steel in March 2005, operating a laser cutting machine, when a sheet of steel shifted inside this machine. The custom at the plant was when that occurs, a worker would go inside to straighten it. The company was aware of the quick-fix practice by its workers. It was while performing this task that Mr. Hizer became trapped with his chest pinned against a part of the machine. He died of compressional asphyxiation and was found that morning by co-workers. The crooked sheet of steel was still inside the machine. Mark Ropchock, a lawyer with the Akron, Ohio law firm of Roeztel & Andress, represented the widow and did a very good job.
Source: Beacon Journal

Flight Attendant And Airline Settle Lawsuit Over 9/11 Trauma
A former United Airlines flight attendant who narrowly missed being on one of the hijacked jets that crashed into the World Trade Center has settled a federal lawsuit that accused the airline of wrongfully firing her after she was unable to work because of posttraumatic stress disorder. more stories like this

Deborah Jackson of Plaistow, New Hampshire, had worked for United Airlines out of Boston’s Logan International Airport for 17 years when the September 11, 2001, terrorist attacks occurred. She reached a settlement with the airline in her lawsuit. The terms of the settlement are confidential.


After September 11th, there were numerous reports across the country of flight attendants suffering from post-traumatic stress disorder. There has also been other litigation of a similar nature. In 2003, a New Jersey appellate court ruled that Kim Stroka could not receive workers' compensation for the emotional distress she suffered after trading shifts with a co-worker on United Airlines Flight 93, which terrorists hijacked after takeoff from Newark, New Jersey. As you know, that plane crashed in a field in Pennsylvania, killing everyone aboard.
Source: Boston Globe

more stories like this



Jury Returns A Verdict For Workers
A jury returned a verdict recently in favor of five persons who had sued the former General Motors Allison Gas Turbine Division in Indianapolis. The five former employees of the division received $3.1 million in the fraud and broken promises lawsuit against GM. The federal court jury in Indianapolis ruled that GM broke its promise to the employees that they could switch from a salaried position to a unionized hourly job at their request. GM argued that since four of the employees didn't request the switch before it sold the division in 1993 the promise didn't apply. A total of 22 employees of the old Allison Gas division sued GM over the promise. Cases for the other plaintiffs are still pending. The jury award represents the lost wages and benefits the employees would have earned if they'd been allowed to switch jobs.
Source: Indianapolis Star
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