Marcum complaint

8/7/2019 Marcum complaint

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IN THE CIRCillT COURT OF BOONE COUNTY, WEST VIRGINIAKATHY MARCUM, Individuallyand as Administratrix of the Estateof Joe Marcum,

Plaintiff,vs. Civil Action No. ll-C- f~

C/)MASSEY ENERGY COMPANY,a Delaware corporation,MASSEY COAL SERVICES, INC.,a West Virginia corporation,PERFORMANCE COAL COMPANY,a West Virginia corporation,

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Defendants.l,y(J1--1

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COMPLAINTComes now Kathy Marcum, individually and as the Administratrix of the Estate of Joe

Marcum, and sets forth her Complaint against the defendants named herein.

IntroductionThis Complaint is filed against the named defendants as a result of a mine explosion at

the Upper Big Branch Mine (MSHA ID 46-08436) on AprilS, 2010. Twenty-nine miners,including plaintiffs decedent, Joe Marcum, were killed in this mine explosion and other minerswere severely injured. Based upon information learned through the investigating agencies of thestate and federal government, the plaintiff files this Complaint against the defendants seekingcompensatory and punitive damages as a result of the willful, wanton and recklessly unsafemanner in which the defendants operated the Upper Big Branch Mine and caused the death of her


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decedent.Defendant Performance Coal, as decedent's employer, is liable to the plaintiff for its

violation of West Virginia's deliberate exposure law whereas Performance, by its agents,knowingly exposed the decedent to specific unsafe working conditions contrary to federal, stateand industry safe workplace regulations and standards.

Defendant Massey Coal Services, Inc., is an affiliated but separate company fromPerformance Coal, but as a Massey Energy subsidiary, voluntarily or by direction of parentMassey Energy, undertook certain engineering and safety duties at the Upper Big Branch Mine

which it failed, through its employees and agents, to perform in a reasonably prudent manner. Assuch, Massey Coal Services, Inc., is liable to the plaintiff for its acts and omissions whichproximately caused the death of plaintiff s decedent.

Defendant Massey Energy Company, is the parent of, but separate from, PerformanceCoal. Massey Energy, by and through its agents, including, but not limited to CEO DonBlankenship and members of its Board of Directors, were intimately involved in the miningactivities at the Upper Big Branch Mine. Don Blankenship was actually aware of the unsafemanner in which the Upper Big Branch Mine was operated as his involvement necessarilyincluded his knowledge of the staggering number of safety violations issued by safety authoritiesto Performance Coal related to the Upper Big Branch Mine prior to the explosion. Members ofthe Massey Energy Board of Directors likewise voluntarily assumed active duties andresponsibilities for the monitoring and oversight of workplace safety compliance at subsidiarymines such as Upper Big Branch by way of a written settlement agreement to a shareholderderivative suit executed on June 30, 2008. The intimate involvement by Don Blankenship in the

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activities at Upper Big Branch and his knowledge of the abysmal safety record of the mine reflecta gross negligent or reckless indifference to workplace safety and as a result. as an agent of MasseyEnergy, Don Blankenship's negligent or reckless management in the operations at Upper BigBranch make Massey Energy liable to plaintiff for the death of her decedent. Furthermore, thenegligent and reckless manner in which the members of the Board of Directors performed orfailed to perform the safety oversight and management duties they voluntarily assumed in thesettlement of the shareholder derivative suit, resulted in the Upper Big Branch Mine continuing tooperate when a reasonably prudent Board would have shut it down or made management changes

to ensure the mine was operated in compliance with state, federal and industry safety standards.As such, Massey Energy is liable to the plaintiff for the death of her decedent by way of thenegligent and reckless acts of its Officers and its Board of Directors.

Facts1. Plaintiff Kathy Marcum is the widow and personal representative of the Estate of

Joe Marcum who was killed on April 5, 2010, in the mine explosion in the Performance CoalCompany Upper Big Branch Mine.

2. Plaintiff Kathy Marcum is a citizen and resident of Mingo County, West Virginia,and was duly appointed the Administratrix of the Estate of Joe Marcum on April 28, 2010.

3. Joe and Kathy Marcum were married on December 18, 1971. They lived ashusband and wife until his death and she was personally and financially dependent upon herhusband. During their long marriage, the Marcum's raised two children, Garnet Mae Murphy age35 and Kathy Jo Marcum age 37.

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4. Defendant Performance Coal Company ("Performance"), is a West Virginiacorporation with its principle place of business located at Montcoal, West Virginia. It is engagedin the business of extracting and selling coal from mining operations in Boone and RaleighCounties which include the Upper Big Branch Mine. The West Virginia Secretary of State alsolists for Performance the d/b/a Upper Big Branch Mining Company. The Upper Big Branch Mineencompasses areas in both Boone and Raleigh County, West Virginia, thereby placing the site ofthe actions giving rise to this matter in whole or in part in Boone County, West Virginia.

5. Defendant Massey Coal Services, Inc. ("MCS"), is a West Virginia corporation

with its principal place of business in Julian, Boone County, West Virginia. MCS is a subsidiaryand affiliate of defendant Massey Energy Company, and provides to the parent's subsidiariessafety and engineering services by directive of Massey Energy Company's corporate policies.These activities undertaken by MCS included for the Upper Big Branch Mine, the promulgation,dissemination, adoption and use of, monitoring and compliance with Massey Energy and MCS'sS-1 safety standards and the provision of mine engineering services and advice from MCS toPerformance.

6. Defendant Massey Energy Company ("MEC"), is a Delaware corporation, with itsprincipal offices in Richmond, Virginia. MEC is engaged in the extraction and sale of coal frommines it either directly owns and operates or from mines operated by its subsidiary "resourcegroups" as they are called. MEC Executive and Board-level management voluntarily undertookduties and responsibilities commensurate with the daily operations at the Upper Big Branch Mine.

7. Jurisdiction and venue are proper before this Court since the acts and omissionsgiving rise to this action occurred all or in part in Boone County, West Virginia, and defendant

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MCS has its principal offices located in Boone County, West Virginia.8. Decedent Joe Marcum was employed by defendant Performance as a

miner operator at the Upper Big Branch Mine on and before April 5, 2010.9. Defendants Performance, MCS and MEC ("Massey defendants") are, and at all

times relevant were, responsible for the supervision, safety and oversight of the Upper Big BranchMine. As such, the Massey defendants were responsible for providing safe working conditions atthe Upper Big Branch Mine on and before April 5,2010.

10. Defendant Performance, by and through its management personnel at the Upper

Big Branch Mine, was responsible for the inspection of the working areas of the mine for safetyhazards and for the correction of all safety hazards discovered in the inspections.

11. Defendant Performance, by and through its management personnel at the UpperBig Branch Mine, was responsible for compliance with all required and approved state or federalmining plans applicable to the Upper Big Branch Mine, including ventilation, methane and dustcontrol plans.

12. Defendant Performance, by and through its management personnel at the UpperBig Branch Mine, was responsible for the safe operating condition of al l mining equipment inconformity with the manufacturer's specifications and original design and in conformity with theapproved mining plans for the mine.

13. Defendant Performance, by and through its management personnel at the UpperBig Branch Mine, was responsible for the removal, control or dilution of explosive methane gasand coal dust on and before April 5, 2010.

14. Previous to April 5, 2010, the Upper Big Branch Mine had an abysmal safety

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record. The safety record at the mine dramatically declined between 2008 and 2010. As evidenceof the abysmal safety record of this mine, the following information was known to all Masseydefendants or easily available to their management since the information was a matter of publicand corporate record:

a. The number of MSHA issued violations more than doubled from 2008 to2009;

b. Proposed fines from MSHA inspectors, which factor in the seriousness ofthe violations and the safety attitude of the mine managers, more thantripled to $897,325.00;

c. Violations categorized as "serious and substantial" in 2009 alone reached atotal of 202, which is almost equal to the 204 such violations for the entire2 year period before (2007 and 2008) combined;

d. In the first quarter of2010, there were 124 violations and 53 assessedpenalties totaling $188,769.00;

e. In December 2007, the mine was placed on the pattern of violations statusbased on its safety record and but for a computer error at MSHA wouldhave been on pattern of violation status on and before April 5, 2010;

f. In 2009, MSHA issued 54 withdrawal orders to the mine of which 48included a finding of unwarrantable failure to comply with mine safety lawsand 4 involved a failure to abate previous violations;

g. In 2010, prior to the explosion, 7 withdrawal orders had already been issuedto the mine and 6 of those included findings of unwarrantable failure to

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comply with mine safety laws and 1 involved a failure to abate a previousviolation;

h. In the twelve months preceding the mine explosion, the mine was cited 38times for mine ventilation violations and 37 times for unsafe accumulationsof combustible materials (coal dust).

15. With the number of mine safety violations which existed and had been allowed toexist under the defendant's collective management of the Upper Big Branch Mine, on AprilS,2010, the Upper Big Branch Mine was a catastrophe waiting to happen.

16. No reasonably prudent parent company such as in the position ofMEC wouldhave allowed such an unsafe operation to continue. Despite the knowledge of CEO DonBlankenship that this mine was being operated in such an unsafe fashion; despite CEO DonBlankenship's authority to shut the mine down or change its management; despite the knowledge

of the MEC Board that this mine was being operated in such an unsafe fashion; and, despite theMEC Board's authority to shut the mine down or change its management, defendant MEC'sexecutive and board management allowed the mine to continue to operate.

17. As of this date, the state and federal mine authorities have conducted an extensiveinvestigation of the Upper Big Branch Mine explosion. That investigation has involved some 261individuals being interviewed and testing of mine equipment and sampling of materials in themme.

18. As of this date, 18 Massey employed management level employees,including MEC CEO Don Blankenship and Performance Coal President Chris Blanchard haveexercised their 5th Amendment rights against self-incrimination and refused to testify or explain

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their actions and omissions which might have contributed to the mine explosion. Additionallythe head of security for the Upper Big Branch Mine was indicted in the United States DistrictCourt for the South District of West Virginia for lying to federal authorities in the Upper BigBranch mine explosion investigation. Specifically, Hughie Elbert Stover illegally destroyed

documents requested by the federal government and was not truthful about his role and directivesin warning mine management at Upper Big Branch that mine inspectors were about to enter themine. In doing so, many known violations of mine safety law would be corrected beforeinspectors could see them. As a result, mine safety officials were unable to view the actual day to

day working conditions.19. Inasmuch as the safety violations which caused the AprilS, 2010, mine explosion

were the direct result of the manner in which the mine was managed by the defendants, the UpperBig Branch Mine explosion was not an "act of God".

20. In the days and shifts preceding the explosion, numerous areas at and near the faceand on the belts headed outby were inspected by Performance management and found to be inneed of rock dusting which is the application of finely ground limestone dust to bind to andprevent the suspension in air of dangerously explosive coal dust.

21. Despite the findings of the need for safely addressing explosive coal dust presentin the mine, mine management did not apply rock dust to the areas of the mine where theexplosive coal dust was noted.

22. Prior to and on April 5, 2010, Performance Coal utilized a longwall miningmachine to conduct mining operations in the Upper Big Branch mine. As designed by themanufacturer, the longwall mining machine was equipped with water spray nozzles on its shear

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head to prevent sparks when the cutting bits struck rock; to reduce the explosive coal dustfloating in and around the cutting head and to extinguish any flash fire or ignition that might occurwhen pockets of methane gas were encountered.

23. Prior to and on AprilS, 2010, Performance Coal with full knowledge of minemanagement operated the longwall machine with many of the spray nozzles missing, broken oreven welded closed. As a result, the longwall shear head operated without legally mandated andmanufacturer specified water sprays. Additionally, bits on the shear were dull which resulted inincreased sparks when striking rock in the mining process.

24. Prior to and on AprilS, 2010, Performance Coal had encountered adverse roofconditions in the headgate and tailgate side of the longwall section which in turn decreased oradversely affected the ventilation of the longwall section.

25. The roof conditions were so adverse in the headgate of the active longwall sectionthat the headgate could not be used as the tailgate for the next longwall panel as originallyplanned. As a result, Performance was forced to begin the development of a new tailgate for thenext longwall panel.

26. As a result of the adverse roof conditions encountered in the longwalldevelopment area, production for the longwall was in jeopardy. The longwall panel being minedon or about AprilS, 2010, was nearing completion and the next full panel was well short ofreadiness for production as desired by MEC, MCS and Performance. As a result, production anddevelopment pressures were placed on the mine managers at the mine and on the minersthemselves.

27. As a result ofthe production demands, the non production work such as rock

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dusting, replacing and repairing the woeful condition of the longwall units water sprays and bitswas not performed even though mine safety laws require such work be conducted upon discoveryof the conditions.

28. On April 5, 2010, shortly after 3 p.m., upon information and belief the unsafelymaintained longwall unit encountered and ignited a pocket of methane gas. What should havebeen a brief flash ignition extinguished by the water on the machine or with the consumption ofthe small amount of methane gas, was instead converted into a management-made disaster as thecoal dust in the area, which is actually more explosive than methane or natural gas (which

contains mostly methane), and which was known to exist in unsafe quantities throughout themine, ignited and exploded with such force that it killed 29 miners in the mine, includingplaintiff s decedent.

29. Analysis of the materials on the ribs, roof and floor of the mine has revealed theextent of the areas in the mine where impermissible levels of highly explosive and combustiblecoal dust existed before the mine explosion and which became the primary fuel and driving forcein the explosion.

COUNT I - PERFORMANCE COAL - DELIBERATE EXPOSURE30. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 29.31. As the employer of the plaintiff s decedent, defendant Performance Coal had a

legal duty to provide a safe work environment to plaintiff s decedent and other miners employedat its Upper Big Branch Mine including compliance with all applicable federal, state and mine

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industry safety standards.32. On and before April 5, 2010, defendant Performance Coal exhibited a reckless

indifference to compliance with federal, state and mine industry safety standards as evidenced byits abysmal record of violations issued by state and federal mine safety authorities.

33. On and before April 5, 2010, defendant Performance Coal violated federal, stateand mine industry rules, regulations and safety standards creating and exposing miners to specificunsafe working conditions including miners and supervisors were instructed to disregard knownunsafe and dangerous working conditions; miners and supervisors were instructed to omit entries

reflecting hazardous conditions in inspection books; mine supervisors were not fully and properlyinspecting work areas of the mine; the approved mine ventilation plan was not complied with inthe mine; dangerous and explosive levels of coal dust existed; and mine equipment wasmaintained and operated in a hazardous manner including missing and inoperable water sprays onthe longwall shear.

34. The actions of defendant Performance Coal on and before April 5, 2010, asset forth in paragraph 33 violated West Virginia Code 23-4-2(d)(ii), in that:

(A) Specific unsafe working conditions existed which presenteda high degree of risk and a strong probability of seriousinjury or death;

(B) Defendant Performance, by and through its agents and by and throughinspection documents and other mining information, had actual knowledgeof the existence of the specific unsafe working conditions;

(C) The specific unsafe working conditions violated specific

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state and federal mine safety statutes, rules or regulations,and consensus written mine industry safety standards;

(D) That notwithstanding the existence of the facts set forth insubparagraphs (A) through (C), inclusive, of this paragraph,Performance nevertheless intentionally thereafter exposedplaintiffs decedent to the specific unsafe workingconditions; and

(E) Plaintiff's decedent suffered fatal compensable injuries as defined in

section one, article four, chapter twenty-three as a direct and proximateresult of the specific unsafe working conditions.

35. As a direct and proximate result of the illegal and unlawful conduct of defendantPerformance Coal, defendant Performance Coal is liable to plaintiff for damages as set forth inWest Virginia Code S55-7-6.

COUNT II - MASSEY ENERGY - NEGLIGENCE36. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 35.37. MEC is a Delaware corporation which maintains its corporate headquarters in

Virginia. MEC owns 23 resource groups which include defendant Performance Coal Company.38. Under West Virginia law, a parent company is legally responsible for injuries and

deaths which occur at its subsidiary when the parent company through its officers, executives,

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employees or agents actually exercises control over or is intimately involved in the operation ofthe subsidiary's facility.

39. Under West Virginia law, a parent company or an affiliated company is alsolegally responsible for injuries and deaths which occur at its subsidiary when:

a. the parent or affiliate company voluntarily assumes a duty to perform aservice for the subsidiary;

b. that service is necessary for the protection of third parties, such asemployees of the subsidiary; and,

c. the services are provided in a negligent manner resulting in harm or deathto those third parties.

40. By and through the involvement of CEO and Chairman of the Board DonBlankenship, defendant MEC indeed exercised control over and/or was intimately involved in theoperation of Performance Coal's Upper Big Branch Mine. MEC CEO and Chairman DonBlankenship directly communicated with mine management level employees of Performance Coalby email, telephone, pager and facsimile related to day to day mining activities and had fullauthority to direct and at various times directed their activities. For instance, on October 19,2005, Don Blankenship directly sent a memo to all underground mine superintendents dealingwith a subject as mundane and germane to day to day operation of a mine facility as building ofovercasts and ventilation controls which stated:

If any ofyou have been asked byyour group presidents, yoursupervisors, engineers or anyone else to do anything other than run

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coal (i.e. - build overcasts, do construction projects, or whatever),you need to ignore them and run coal. This memo is necessarybecause we seem not to understand that coal pays the bills.

This memo clearly shows that Don Blankenship as CEO of parent MEC was intimately involvedin and controlled the operation of subsidiary facilities to the point that he could order line levelmanagement at each facility to blatantly disregard and ignore orders issued by their presidents,supervisors and engineers.

41. Prior to April 5, 2010, MEC CEO and Chairman Don Blankenship was fullyaware of the abysmal safety record of the Upper Big Branch Mine and had full authority to takecorrective actions from the replacement of management at the mine itself to the closing of themine itself.

42. Additionally, in 2007 a shareholder derivative action was commenced against DonBlankenship and fellow MEC Board members and/or officers Baxter Phillips, Jr., Dan R. Moore,E. Gordon Gee, Richard M. Gabrys, James B. Crawford, Bobby R. Inman, Robert H. Fogelsong,Stanley C. Suboleski, J. Christopher Adkins, Jeffrey M. Jarosinski, M. Shane Harvey and MarkClemens. The shareholder derivative suit alleged that these individuals in their roles with MECoperated the company in such a fashion that continued violations of safety and environmentalrules, regulations and statutes were commonplace, accepted and allowed. As a result of the fines,publicity and litigation related to these safety and environmental violations, the plaintiffs in theshareholder derivative suit alleged the value of the MEC stock was diminished and MEC itselfand the shareholders suffered damages as a result of the conduct of the defendants named in thatsuit.

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43. A settlement agreement was reached in the shareholder derivative suit whichbecame effective on August 30, 2008. The settlement agreement mandated particular Board-levelinvolvement, oversight, monitoring and reporting of not just MEC's compliance withenvironmental and safety laws, but also the compliance of the subsidiary resource group'scompliance with environmental and safety laws.

44. The obligations of the MEC Board and its officers for compliance with minesafety laws and regulations is spelled out in great detail in the agreement:

a. A Board level Safety, Environmental and Public Policy Committee

(SEPPC) was to be formed;b. A Company-wide "Safety Compliance Officer" was to be named and that

person was required to report to the SEPPC;

c. Safety Compliance Managers for each resource group such as defendantPerformance Coal were to report quarterly directly to the SafetyCompliance Officer on each Resource Group's compliance with workerand mine safety laws, rules and regulations;

d. The Safety Compliance Officer or a designee was to attend every SEPPCmeeting and report regarding the issues under hislher purview;

e. The SEPPC was to reasonably inform the Board as a whole regarding thecompany's compliance with all applicable mine safety laws and regulationsvia a mine safety report;

f. The Board was to make a Corporate Social Responsibility report to itsshareholders on an annual basis that was required to include a report on the

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Company's worker safety compliance;g. The SEPPC was to annually review the Company's safety training

programs, recommend enhancements, report to the Board on key objectivesand progress of such programs and consider criteria and measurementprotocols for ensuring all responsible personnel know all complianceobligations of their work; and,

h. The SEPPC members must make reasonable efforts to attend all annual andspecial shareholder meetings and be available to answer questions about

worker and mine safety compliance.

45. The duties and responsibilities voluntarily assumed by defendant MEC by andthrough the MEC Board and more specifically by the Board members on the SEPPC involve themonitoring, oversight and correction of mine safety compliance not just at the parent MEC level,but specifically and explicitly of the mine safety compliance of the individual Resource Groupsincluding defendant Performance Coal and its Upper Big Branch Mine.

46. Defendant MEC, by the acts and omissions of its Board members, including DonBlankenship and members of the SEPPC, negligently, recklessly, carelessly and with wantondisregard failed to perform in a reasonably prudent manner the duties and responsibilities set forthin paragraph 44 and voluntarily assumed and directly related to mine law safety compliance in theoperation of the Upper Big Branch Mine.

47. Any reasonably prudent Board member signing the shareholder derivativesettlement agreement and!or taking on the duties and responsibilities of a member of the SEPPC,

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would have with any reasonable effort and concern been able to discover and then take actionrelated to the abysmal mine safety compliance record for the Upper Big Branch Mine. Theinformation was readily available to each and every Board member and especially the members ofthe SEPPC.

48. Instead of performing through its Board members and director Don Blankenshipthe safety compliance and monitoring duties specifically and explicitly set forth in the settlementagreement, defendant MEC reported instead the illusory statistic of "Non-fatal days lost" orNFDL. The NFDL only measures days lost from injuries, some of which may occur without anysafety violation (i.e. a strained back from lifting). The NFDL is not a measurement of workplacesafety law compliance.

49. However, even when using the flawed NFDL, the Upper Big Branch Mine'sNFDL was 6.07 for 2008, which was 3.14 times higher than the MEC average. For 2009, theUpper Big Branch Mine's NFDL was 5.81 or 3.47 times higher than the MEC average.Therefore, even under the flawed logic of using the NFDL for safety compliance monitoring, theUpper Big Branch mine was abysmal and even with MEC's organization a clearer safety outlier.Yet defendant MEC did not replace management, make necessary safety changes at the mine orclose it.

50. To further compound the misleading use of the NFDL as a reasonable prudentmanner to monitor mine safety law compliance, evidence now shows that MEC and its ResourceGroups manipulated the reporting of injuries to keep the NFDL lower than it was in reality.Resource group miners report being told to report to work even though injured so that an NFDLwould not have to be reported. Defendant MEC itself has admitted that it under reported NFDL's

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as required by law.51. A powerful motive to manipulate the NFDL for MEC and its Resource Groups

lies in the bonus structure for MEC and its Resource Groups. Resource Group management andMEC management including Don Blankenship received large bonuses for lowering NFDL rates.

52. Based upon CEO Don Blankenship's intimate involvement in the activities at theUpper Big Branch Mine, Don Blankenship should have reported the abysmal safety complianceissues at Upper Big Branch to the Board, or at a minimum to the SEPPe. Likewise, he shouldhave exercised his considerable power over the Resource Groups and either closed the mine or

replaced the mine management under whose watch the multitude of safety violations had mountedor made sweeping safety changes at the mine.

53. On AprilS, 2010, the specific unsafe working conditions set forth in paragraph 33existed in the Upper Big Branch Mine because MEC management had negligently, recklessly andwith wanton disregard for worker safety failed to take corrective measures related to the poorsafety performance at the Upper Big Branch Mine and/or because MEC management hadnegligently, recklessly and with wanton disregard for worker safety fostered and promulgated acompany-wide disregard of mine safety compliance. As a direct and proximate result ofdefendant MEC's negligence, carelessness and wanton disregard for worker safety, a catastrophicexplosion tore through the Upper Big Branch Mine on April 5, 2010, injuring and killingplaintiffs decedent and 28 other miners.

54. As a direct and proximate result of defendant MEC's involvement in the unsafeoperations of its subsidiary's facility by and through its agents, including CEO Don Blankenship,defendant MEC is liable to plaintiff for damages as set forth in West Virginia Code 955-7-6.

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55. As a direct and proximate result of the grossly negligent and reckless failure ofdefendant MEC's Board and SEPPC to perform in any reasonably prudent manner the mine safetycompliance and monitoring duties voluntarily assumed in the written shareholder suit settlementagreement, defendant MEC is liable to plaintiff for damages as set forth in West Virginia CodeS55-7-6.

COUNT II I - MASSEY COAL SERVICES56. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 55.

57. Defendant MCS is a subsidiary of defendant MEC and is charged with providingmine safety and engineering services to MEC Resource Groups including Performance Coal andits Upper Big Branch Mine.

58. Prior to April 5, 2010, defendant MCS provided safety and engineering services toPerformance Coal and in particular to its Upper Big Branch Mine.

59. As part of its duties and responsibilities, defendant MCS oversaw thedevelopment, promulgation, implementation and monitoring of the Massey comprehensive S-lsafety program. All MEC Resource Groups and their mines are required to implement andcomply with the S-l program. Defendant MCS is required to monitor each mine's compliancewith the S-l program and that duty includes the right to conduct S-l compliance audits.Defendant MCS has the authority to designate a mine as S-l compliant or as non-compliantsetting forth the S-l deficiencies and corrective measures needed to be taken by the mine'smanagement.

60. Defendant MCS likewise had the authority to conduct and conducted Safety

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Development Group (SDG) meetings which were to include safety and/or management membersof each Resource Group to discuss their mine safety law compliance and to seek out and exchangeinformation on measures to improve mine safety law compliance.

61. On and before April 5, 2010, agents and management of defendant MCS in theexercise ofMCS's safety services duties either were aware of the abysmal mine safety law recordat the Upper Big Branch Mine and its failure to meet S-1 guidelines and negligently failed to takecorrective actions or agents and management of defendant MCS were inexcusably negligent in theperformance of those safety services duties to the point that MCS could be unaware of theabysmal safety record of a mine for which it had directly assigned duties of monitoring safetycompliance.

62. On April 5, 2010, the specific unsafe working conditions set forth in paragraph 33existed in the Upper Big Branch Mine because MCS agents and employees had negligently,recklessly and with wanton disregard for worker safety failed to monitor the Upper Big BranchMine's safety compliance and take corrective measures in a reasonably prudent manner and/orbecause MCS employees and agents had negligently, recklessly and with wanton disregard forworker safety fostered and promulgated a company-wide disregard of mine safety compliance. Asa direct and proximate result of defendant MCS's negligence, carelessness and wanton disregardfor worker safety, a horrific explosion tore through the Upper Big Branch Mine on April 5, 2010,injuring and killing plaintiff's decedent and 28 other miners.

63. As a direct and proximate result of the utter failure of defendant MCS to performin any reasonably prudent manner the mine safety compliance and momtoring duties assumed atthe direction of its parent company, defendant MCS is liable to plaintiff for damages as set forth

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in West Virginia Code ~55~7-6.

COUNT IV ~ SPOLIATION OF EVIDENCE64. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 63.65. Shortly after the Upper Big Branch Mine explosion at approximately 3 :02 pm on

April 5, 2010, and in direct violation of state and federal mine law, employees and agents ofdefendants MEC and Performance Coal, Christopher Blanchard and Jason Whitehead, entered theUpper Big Branch Mine.

66. Responding agents of MSHA and the WVOMHST were unaware when arriving atthe mine that these individuals were in the mine and without any member of mine agencies withthem.

67. Not until approximately 7;30 p.m. did MSHA officials become aware that theseindividuals were in the mine and unescorted. At that time, MSHA officials ordered Blanchardand Whitehead from the mine.

68. Based upon evidence of discarded Self Contained Self Rescuer devices (SCSR's)and footprints found by MSHA and the WVOMHST in their investigation, Blanchard andWhitehead traveled to such deep areas of the mine that they were at or in close proximity to thelongwall section which has now been designated by both the regulatory agencies and defendants

as the ignition site and where vast amounts of critical evidence were located.69. F or over four and half hours critical evidence, including the ignition site itself and

face mining equipment, were in the exclusive control of agents of the defendants in clear violation

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of the law. Additionally, due to the illegal actions of Hughie Elbert Stover and others atPerformance Coal, critical evidence related to knowledge by defendant of the unsafe workingconditions by way of citations and violations were destroyed or lost when these illegal actionswhich have led to the indictment, caused federal and state inspectors to inspect mine areas not inthe usual and customary conditions.

70. The actions and conduct of the defendants' agents and employees may causecritical evidence necessary for the plaintiff to prove and prevail in her case to be compromised andsubject to adverse jury consideration and may ultimately result in the inability of plaintiff toprevail in her cause against the defendants before a jury.

71. The defendants' agents and employees violated a clear statutory duty withtheir presence at the explosion site and the out by areas which suffered damage in the explosion.

72. As a direct and proximate result of the illegal actions of the defendants' agents,spoliation ofplaintiffs case may have occurred and should the plaintiff not prevail in herunderlying cause, plaintiff alleges she is entitled to recover in her spoliation claim the fullmeasure of damages she would have recovered as allowed under West Virginia Code 955-7-6.

73. Alternatively, plaintiff requests that the Court at the appropriate time provide the

jury in this matter an adverse inference instruction informing them that the evidence was alteredor compromised and as such they may infer that the evidence would not in its initial state havebeen favorable to the defendants.

COUNT V - NEGLIGENT AND INTENTIONALINFLICTION OF EMOTIONAL DISTRESS74. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

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1 through 73.75. Despite the presence of Christopher Blanchard and Jason Whitehead in the mine

for over four and half hours and despite their first hand knowledge that the explosion had killedall the miners underground, defendants Performance Coal, MEC and MCS nevertheless did notfully inform the appropriate regulatory agency representatives nor did they inform the families asthey kept vigil on the mine site. Instead, the families and indeed the nation were allowed to sitethrough several days of vigil without being given information known to the defendants related tothe fate of their loved ones. Several months later, it was revealed as part of the MSHA and

WVOMHST investigation the full extent of the areas of the mine in which Blanchard andWhitehead traveled that day.

76. Upon learning of the actions and conduct of Blanchard and Whitehead on the dayof the explosion and upon learning that management officials with the defendants withheld thisimportant information from the families, including the plaintiff, the plaintiff was caused to suffergreat emotional distress and anger.

77. Any reasonable, rational and prudent person or entity would foresee that thewithholding and mishandling of such important information to families holding such a vigilwould cause them great emotional distress and anger upon learning that the information waswithheld and that they were allowed to go on for days thinking their loved-ones, includingplaintiff's decedent had somehow survived the explosion. All the while, these agents andmanagers of defendants had seen the extend of the devastation and had seen the victims had notsurvived.

78. The conduct of these Defendants was extreme, outrageous, beyond the bounds of

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decency, atrocious and intolerable such that it was substantially certain that emotional distresswould result from such conduct. Said emotional distress was beyond that which any reasonableperson should be expected to endure.

79. As a direct and proximate result of the conduct of these Defendants, as allegedherein and as will be further developed in discovery, Plaintiff received false and misleadinginformation, including but not limited to the status of Joe Marcum and whether Joe Marcum wasstill alive, and as a direct and proximate result thereof, suffered, and will continue to suffer in thefuture, severe emotional and mental distress, trauma and harm, medical expenses, annoyance,aggravation, and inconvenience and economic loss.

COUNT VI - PUNITIVE DAMAGES80. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 79.81. The acts and omissions forming the basis of Counts II , III, IV, and V of this

Complaint were of such an extreme, willful, wanton, and reckless nature, and showed such grossindifference to human life as to warrant punitive damages.

82. Punitive damages are justified to punish the defendants for their wanton acts whichresult in the death of29 miners, including plaintiffs decedent. These defendants by theirknowing continued operation of this rogue Upper Big Branch Mine before the explosion and bytheir continued denial of responsibility for any cause of the explosion despite their knowledge oftheir conduct before the explosion, the mine inspection records and the findings of theinvestigation to date reflect the need for a punitive damage award to deter these defendants from

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further operation of mines in this fashion. Punitive Damages will serve to deter the defendantsfrom continuing to defy state and federal mining safety regulations in their pursuit to profits, andplacing financial considerations ahead of basic minimal regard for human life, safety and dignity.

WHEREFORE, the plaintiff demands judgment against the defendants, jointly andseverally, for:

a) compensatory damages in such an amount allowed under the law for plaintiffsclaims;

b) costs and attorney fees expended in prosecution of this matter;c) pre-judgment and post-judgment interest as provided under the law; andd) any and all other relief to which the Court deems plaintiff is entitled.PLAINTIFFS DEMAND A TRIAL BY JURY.

KATHY MARCUM, Individuallyand as Administratrix of the Estateof Joe Marcum,

Timothy . ey (WVSB# 5839)Guy R. Bucci (WVSB #0521)L. Lee Javins (WVSB #6613)D. Blake Carter, Jr. (WVSB # 9970)J. Ryan Stewart (WVSB #10796)BUCCI BAILEY & JAVINS L.C.Post Office Box 3712Charleston, West Virginia 25337(304)345-0346

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Documents

Marcum complaint