After Upper Big Branch Explosion: Don’t Our WV Coal Miners Deserve Better?


Today is Monday, April 5, 2010.  You’ve just finished Easter weekend with your family.  You’ve enjoyed spending time with children and grandchildren, nieces, and nephews.  Church has played a big part in your weekends.  Your time with family is a blessing.  This Easter weekend you have counted your blessings.   You have also prayed. . . because as a coal miner, you pray.

You leave home and drive toward Montcoal, W.V.  It’s the same drive you have done six days a week for the last several years – a difficult winding drive on two-lane mountain roads.  You have a lot of time to think during that long drive.

You think to yourself, “Mining coal is a good job, but it’s hard work.”  Working underground in the coal mine is always dark.  No matter how good the lighting is, it’s always dark.  It is also wet and muddy.  No matter what you do, when you finish the long day, you are filthy.

Life as a coal miner is tough and dangerous.  It’s hard on you.  It’s hard on your family.  Your family worries about you.  You worry, too, but you do it for your family.  You do it for your children.  You do it so your children will never have to do it.  At work, most of your friends feel the same.

Your drive ends at Montcoal.  It is a small community — about the only business located there is the Upper Big Branch mine.  The sights, sounds, and smells of the mine permeate all of Montcoal.  Massey Energy operates the mine.

You mine coal there at Upper Big Branch.  Before going to work for in the mines, you had other jobs — but, those jobs did not pay as well as going underground in the mines.  Your friends, from those other jobs, were never as good as the friends you make going underground.

You work the morning shift.  You descend miles underground on a man-trip to reach your worksite.  You work all morning and most of the afternoon.  Today has been uneventful.  Quitting time is 3:00 and you’re looking forward to quitting time.  Thank goodness for quitting time.  You want to get back home.

Suddenly, all power in the mine shuts off.  Everything is dark and the silence is unnatural.  You hear a roar.  You see a flash.  You know something is wrong.  You know that something bad has happened.

You are killed in an instant.  In the last second of your life, you hope that you will not have died in vain.  You hope that an explosion like this will never be allowed to happen again.

In the wake of that Upper Big Branch tragedy, the Mine Safety Health Administration was charged with making sure nothing like it ever happened again.  One of the ways it is to do that is by increasing its enforcement efforts, including reducing the backlog of fines frivolously appealed by coal companies.

Under the Mine Safety Health Act, stiffer penalties are to be levied against repeat offenders.  But a coal company can avoid the stiffer penalties by asserting frivolous defenses and requesting multiple delays.  MSHA watchdogs have long complained that allowing companies to avoid the more stringent penalties ultimately takes the teeth out of the law.  Many fines related to health and safety, simply go unpaid when mining companies declare bankruptcy or go out of business.  In fact, seventy million dollars is owed to the federal government for health and safety violations by coal companies.

Recently, strides had been made to clean up the backlog by bringing in more government lawyers to handle the cases.  However, that progress is about to be undone.  As the Huffington Post reported, “[F]aced with the same across-the-board cuts now hitting federal agencies, the Labor Department plans to shut down or downsize three offices devoted expressly to litigating some 10,700 mine safety cases involving fines that companies are contesting, according to a letter sent from concerned Democrats to Labor Department officials earlier this month.  Thirty out of 74 attorneys handling cases in those offices would be laid off, and others would be subject to furloughs, states the letter, signed by Sens. Jay Rockefeller (W.Va.) and Joe Manchin (W.Va.), as well as Reps. George Miller (Calif.) and Nick Rahall (W.Va.).”

The Huffington Post noted that the cuts to the backlog efforts are more severe than most other cuts under sequestration.

If we don’t learn from the past are we not doomed to repeat it?  After Upper Big Branch, don’t our WV coal miners deserve better?


Attorney Mark Underwood Attends AAJ’s Ultimate Advocacy College

Photo by Tim WebbHuntington, West Virginia lawyer, Mark Underwood, participated in the American Association of Justice Ultimate Trial Advocacy College: Art of Persuasion.  The five day course was held at the Harvard University School of Law. The college for trial lawyers was first held in 1990.  Back then, the “Ultimate” was the first seminar to help trial attorneys representing people, rather than corporations, develop their skills. Utilizing more than 20 years of research, AAJ’s Ultimate remains the nation’s preeminent trial advocacy seminar.  Huntington attorney, Mark Underwood, attended his first Ultimate in 2002.

Distinguishing the first time he attended the training seminar from the second time, Huntington, lawyer Mark Underwood commented: “In 2002, the school concentrated on the advantages of focus groups and the standards broken by a defendant.  Telling the story was the focus of the college this year.  This time it was much more similar to the Gerry Spence Trial Lawyers College that I have been to several times.”  He further commented: “Whether you are trying a case in Huntington, WV, Dallas, TX, Los Angeles,  CA or Washington, D.C., occasionally you need to stop being an attorney and get out of the way of the story.  The members of the jury want to experience the genuine human story.”

The trial workshops comprised of trial experts and teachers who worked as a team with the lawyers that attended the seminar.  The rigorous course goes into advanced techniques for selecting juries, voir dire, trial psychology, and courtroom communication.   It incorporates a mix of lectures, demonstrations, and individual workshops headed by a team distinguished trial attorneys and trial consultants.

Attorneys from all over the United States and Canada attended the program. Two lawyers from West Virginia participated.


Several days ago, I posted about the number of coal miners that had died during the 25 day period from January 26, 2013 to February 19, 2013. During those 25 days, six coal miners, including, four from West Virginia, one from Kentucky and one from Illinois, died in mining accidents.

It was reported that those deaths were the highest number of coal miners to die during a short period of time since the Upper Big Branch coal mine explosion. During that coal mine accident, 29 coal miners died, and approximately another 20 were injured. As you may know, we represented numerous victims of the Upper Big Branch coal mining accident.

Well, it turns out that the Chinese coal miners have it even worse than our coal miners when it comes to coal mining accidents. During the four days from February 26, 2013 to March 1, 2013, thirty-one Chinese coal miners died in coal mining accidents. On February 26, 2013, twenty coal miners were killed when a steel cable pulling a carriage filled with coal miners broke in the Gansu Province. Twenty coal miners plunged to their death in that coal mine accident. Three days later, on March 1, 2013, eleven coal miners died in a Hebel Province coal mine. An air compressor ignited and the fire spread inside the coal mine. Similarly, in the Philippines, on February 14, 2013, five coal miners died when their Semirara coal mine suffered a roof collapse.

Last year in China, 1,384 coal miners died in mining accidents. At the same time, 36 miners died in both coal mine accidents (19 deaths) and metal mine accidents (17 deaths) in the United States. Out of the 19 coal mining accident deaths in the United States last year, seven happened in West Virginia coal mines. Comparing the number of coal mining accident deaths between two countries is an apple to oranges type of comparison due to the size of the countries, the number of mines and miners, and a whole host of other factors. It is clear, however, that the 41 coal miners that died during the 32 days, of January 26, 2013 to March 1, 2013, is a record that should not be repeated.

Six Coal Miners Killed in 25 Days… In the 25 day period from January 26, 2013 to February 19, 2013, six coal miners died in coal mining accidents.  Four of the coal mining accidents happened in West Virginia.  One coal mining accident  happened in Kentucky.  One happened in Illinois.  Four of the coal mine accidents occurred at underground mines.  Two happened at surface mines.

The causes of the coal mine accidents included being: crushed by a bulldozer, struck by a hydraulic cylinder, pinned underneath a scoop,  pinned by a continuous miner and crushed while attempting to re-rail a shield carrier.  While these type of coal mining accidents are not captivating as a massive explosion that roars for miles underground like the Upper Big Branch blast, they are just as deadly.  Their results are just as tragic.

When a huge mining disaster like Upper Big Branch Occurs, the community, and sometimes the entire nation, mourn.  There is an outpouring of support from everywhere.  When a single miner dies, or in this case, six miners, it is barely noticed.  Behind the numbers, are wives, husbands, sons, daughters, grandsons and granddaughters.  Birthdays, graduations and weddings will be missed.  The victim will be missed.

Where are the grief counseling services, the statues, the anniversary memorials, the television specials when one coal miner dies or is seriously injured?  Does it take 29 coal miners dying in a coal mine accident to get our attention and sympathy?  Isn’t it too easy to overlook the death of one coal miner, or in this case six coal miners?

Let’s remember all the coal miners.

MSHA six fatalities in 25 days



Lawyer Underwood Interviewed on National TV

Foxx Friends Snipit

Attorney Underwood Interviewed on National TV about case involving retiree who was wrongfully denied health insurance benefits under ERISA.



Lawyer to Represent Coal Mine Disaster Families



Law Firm to Represent Coal Mine Disaster Families

Posted: 8:54 PM Apr 18, 2010

Reporter: Brooks Jarosz

11pm Story

HUNTINGTON, W.Va. (WSAZ) — With tragedy comes an outpouring of support.

Underwood Law Firm wasted no time putting ads in local newspapers a week after the deadly blast killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

Attorney Mark Underwood says he stands by his decision; especially because he says benefit packages are often difficult to understand.

“I think it was perfect timing in light of the fact that Massey came out with a benefits package the very next day,” Underwood said.

Underwood said his grandfather was killed in an industrial accident years ago. His family understands what happens following the funeral with emotions running high, and the daunting task of legal paperwork.

“The family members that would be considering those benefit packages need to seek some sort of legal counsel whether it’s our firm, another firm, a friend or a neighbor that’s a lawyer,” Underwood said. “They need to go and sit down and talk to a lawyer before they agree to anything with Massey.”

Gallagher is President and CEO of Charles-Ryan and Associates, a public relations firm.

“I would have counseled a client to wait because you have to balance it out with treading on the grief of families versus of course wanting to make sure they have proper representation,” Gallagher said.

Mark Underwood says he wouldn’t change the steps he took on the legal front.

“The first step is the investigation and the second step is sharing that investigation in an effort to answer the questions that these family members have,” he said.

Those questions will someday be answered but never bring their loved ones back.

A Massey spokesperson says they’re still working with the families involved in the disaster. The company did not want to comment on any claims alleged by area lawyers.

Massey Energy has been running its own ad reading “always in our hearts, in our memories and our prayers.”


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