February 23, 2010

STRATTON FAXON FILES FIRST LAWSUIT REGARDING POWER PLANT EXPLOSION IN MIDDLETOWN. EXPLOSION SETS OFF LITIGATION

Six hours after the Kleen Energy power plant blew up in Middletown on Feb. 7, New Haven plaintiffs’ lawyer Michael Stratton and his private investigator were surveying the wreckage.

“We knew we were going to be involved,” Stratton said. “I was just looking at the site, the emergency crews at work, talking to the people there, just getting a sense of what happened. Because after that first day, everything’s shut down. You can’t get information from the [government] investigators.”

New Haven’s Stratton Faxon has three electrician clients who were injured in the blast, which killed five workmen and injured dozens of others. New London plaintiffs’ lawyer Robert I. Reardon has three clients so far, one electrician and two pipefitters. None of these potential plaintiffs have yet filed suit.

It is not yet clear who is representing the estates of the five workers killed, according to well-connected plaintiffs’ lawyers and the Connecticut Trial Lawyers Association.

In an e-mail, Pullman & Comley partner Lee D. Hoffman wrote: “I can confirm that Pullman & Comley, along with the firm of Bingham McCutchen, represents Kleen Energy Systems LLC,” which owns the plant. It was about 95 percent completed, and set to start up this spring.

The explosion occurred during the purging of a massive natural gas line. A similar operation also caused an explosion last June 9 in Garner, N.C., at a Slim Jim factory operated by Con Agra. During purging, welding debris, dirt, air and other gasses are blown out of large supply lines by high-pressure blasts of natural gas.

After an investigation of the Slim Jim explosion, the U.S. Chemical Safety and Hazard Investigation Board proposed new “urgent recommendations” just three days before the Middletown blast. The recommendations read: “Purged fuel gases shall be directly vented to a safe location outdoors, away from personnel and ignition sources.”

If outdoor venting is impossible, the recommendations required evacuating non-essential personnel and controlling or eliminating potential ignition sources. The proposed regulations also called for use of gas level monitors, which were in use on the Connecticut job.

In the wake of the explosive Middletown incident, it’s a safe bet that new and mandatory procedures or checklists will be recommended to improve worker safety. At the same time, the recommendation will be scrutinized by litigators to zero in where fault and liability may lie.

‘Things Disappear’

Connecticut lawyers await the formal investigations by federal and state authorities, who are treating the Middletown plant site as a potential crime scene. They are making mental checklists of their own on how best to proceed.

When the government inspectors leave, the lawyers may want to file suit quickly and get a court order to preserve evidence, perhaps by having it held in a facility controlled by a neutral party. At least that’s the advice of Richard Bieder, of Bridgeport’s Koskoff, Koskoff & Bieder, who represented victims of the mass construction disaster at L’Ambiance Plaza in Bridgeport in 1987.

“Things disappear, you know,” Bieder said. “We thought it was critical to get in there at the earliest stage and have somebody neutral hold on to the exhibits. That’s what we proposed and what the court went along with.”

Joel Faxon, Stratton’s partner, confirmed that one of his firm’s goals is to preserve evidence. “Our clients were on the scene, so we interviewed them,” he said. “They’re going to have a clearer memory now than in two years,” when settlement negotiations or courtroom litigation is underway.

Stratton said it was valuable for him to get a big-picture view of the explosion scene. “You have to get there as quickly as possible to get the inside scoop. It was a Sunday afternoon, so I drove up there.”

He emphasized that he wasn’t ambulance-chasing. “Obviously you cannot be out there soliciting cases, or anything like that. That’s ridiculous. None of our cases come in that way – they all come in from referring lawyers or people who know us,” Stratton said.

The North Carolina plant explosion serves as a kind of template for litigators involved in the Middletown blast. Attorney J. David Stradley works for White & Stradley, a Raleigh firm representing eight plaintiffs who were injured in the Con Agra blast. In an interview, Stradley agreed that preserving evidence was a high priority.

“We filed suit very early, primarily for the purpose of making sure the evidence was in fact preserved,” Stradley said. “What we found, as we got into the suit and issued a subpoena for inspection of the facility, we found that the owner of the facility [Con Agra] didn’t have a good handle on the condition that things were in, or getting things secured, and things of that nature.”

Unlike the Connecticut plant, which was under construction, the Slim Jim factory was in operation, so the potential for confusion was magnified. In such a chaotic situation, Stradley said, “evidence can be destroyed accidentally as easily as it can be destroyed intentionally.”

Reardon, the New London plaintiffs’ lawyer, said he hoped there would be no issues of destruction or “spoliation” of evidence. Preventing spoliation is critical to this kind of case, Reardon said. “My clients can’t explain to me what ignited this blast,” he said, and physical evidence may become critical.

Reardon’s clients are two pipefitters and an electrician, and the Stratton Faxon clients are electricians, all covered by workers’ compensation.

“The real issue is whether or not there is going to be any third-party liability, beyond workers’ comp,” said Reardon. ”We have to wait for the investigation by the federal and state governments before we are allowed to step in with our experts and see what their conclusions might be as to how this happened.”

Faxon said the potential list of defendants starts with general contractor O&G Construction, of Torrington, which is experienced at road building but was working on its first power plant. An O&G spokesman did not return a call for comment.

Last year, Stratton & Faxon recovered a record $11 million workplace injury settlement for a client hurt in a forklift fall at the Stop & Shop job site in Canaan. Workers’ compensation did not shield the supermarket chain from liability because the injured worker was hired by a temporary agency. It was the agency – not Stop & Shop – that bought the workers’ comp insurance and received its resulting protection

Faxon said more sophisticated workplace insurance products are available to shield the general contractor and all its subcontractors from potential liability. He said it will be interesting to find out if O&G had such an umbrella policy, known as an Owner-Controlled Insurance Program.

It would be “very exciting stuff for them if they had one,” said Faxon. “If they had one, that strengthens their workers’ comp defense.”