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



Does a Time Out for Coal Operators Work?

Governor Earl Ray Tomblin issued an order directing West Virginia’s coal operators to stop mining for one hour in response to the death of another miner last week.  Did it work?

Sources tell Underwood Law Office that Coal Miner, John Miles, died when the scoop he was operating flipped over on top of him.  He was loading an elevator.   Normally, the elevator has a kill switch which prevents it from raising or lowering while people or materials are being loaded.   However, this time, electricity in the mine shut off for a brief moment.  When it came back on, the kill switch did not work, and the elevator tried to return to the surface.  When it did, the scoop, which was partially inside the elevator, flipped over, crushing Mr. Miles.

The Governor’s Office states that the Executive Order is to cause coal mine operators to “thoroughly review applicable health and safety laws and regulations, communication protocols and any particularized safety issues apparent in their operations.”

We respect, and even personally like, Governor Earl Ray Tomblin.  We understand his undoubted frustration in wanting to do something.    However, we think that a one hour stop work order is like sending an entire kindergarten class to timeout for the actions of one child.

It would not seem to be a particularly effective punishment.  It punishes innocent miners as well as innocent coal operators with lost employment and production.  Surely, there has to be a better way?



West Virginia Supreme Court Rules Negligent Mine Inspectors Can Be Sued

Private and federal mine safety inspectors can be held liable and sued when a negligent inspection results in the wrongful death of a coal miner, the state Supreme Court ruled in handing a victory to the widows of two men killed in 2006.

The unanimous ruling penned by Justice Robin Davis says inspectors owe “a duty of care” to workers who count on them to do their jobs “with ordinary skill, care, and diligence” expected by members of their profession. Inspectors, the ruling said, know that negligence is likely to result in foreseeable harm to miners.

For the widows of Don Israel Bragg and Ellery Elvis Hatfield, the ruling is a victory in a continuing battle for justice for those behind by the January 2006 fire at Massey Energy’s Aracoma Coal Co. Alma No. 1 mine in Logan County.

“The conscious decision of coal companies to ignore the most basic of mine safety laws and instead just run coal should not and cannot excuse government regulators from their independent responsibility to enforce those laws,” said attorney Bruce Stanley, “regardless of the prevailing political climate or perceived economic pressures.

“Hopefully, the threat of a private suit will serve as an incentive for them to do their jobs instead of turning their heads,” he said.

The federal Mine Safety and Health Administration didn’t immediately comment on the ruling.

A faulty ventilation system at Aracoma caused smoke from the fire to flood the mine’s escape route, reducing visibility. The miners also struggled to find an unmarked personnel door in the dark and tried to use their breathing devices but lacked the training to properly activate them.  Ten men made it out alive, but Bragg and Hatfield died of carbon monoxide poisoning.

Their widows accused MSHA of negligence, arguing the inspectors who’d failed to do their jobs before the fire should held be liable under state law.  U.S. District Judge John Copenhaver dismissed their lawsuit, saying inspectors can’t be deemed negligent under state laws as they are currently written.

When the widows appealed, the U.S. 4th Circuit Court of Appeals in Richmond, Va., asked the West Virginia justices to specifically address the liability question.

In a ruling last summer, the appellate court said it had found no case law, constitutional authority or state statute to definitively answer what it called “a pure question of state law” that had yet to be specifically addressed. It urged the justices to decide the question once and for all, calling it “a matter of exceptional importance” for West Virginia.

The state’s response, crafted to address a certified question relating to private or third-party inspectors, may help Delorice Bragg and Freda Hatfield pursue their appeal and revive the case against MSHA.

In October, the state Supreme Court heard arguments that included a description of how flammable shavings from a misaligned conveyor belt were allowed to grow into a 4- to 5-foot pile. It was among many safety violations that MSHA inspectors had a duty to catch, Stanley argued, accusing District 4 inspectors of getting “too cuddly” with the company.

The government’s attorney argued that while MSHA could have done its job better, the burden to run a safe mine was on Massey.


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