An Allentown man who suffered burns over 63
percent of his body in an industrial accident at a zinc plant will
be paid $16.5 million in a settlement that plaintiffs lawyers say
is the largest ever reported for a Lehigh County personal injury
Plaintiffs attorneys Robert J. Mongeluzzi and Andrew R. Duffy of
Saltz Mongeluzzi Barrett & Bendesky said the settlement in
Ferguson v. Horsehead Corp. came after a series of
failed attempts at mediation and that the case was scheduled to go
to trial on Sept. 27 before Lehigh County Judge Michele A.
But Mongeluzzi said that mediator Edward L. Edelstein of ADR
Options "never gave up" and "continued to work doggedly with both
sides to get a settlement."
Duffy said the size of the settlement resulted from several
factors including the horrific nature of plaintiff David Ferguson's
injuries and the possibility that the plaintiffs would be seeking
Ferguson, a millwright, was working for Tri-Alliance in June
2006 when it was hired to perform an emergency repair on an
industrial kiln at the Palmerton, Pa., plant operated by Horsehead
Corp., the largest zinc producer in the United States.
The job entailed removal of massive steel plates in the dust
collection chamber - a space with 18-foot ceilings where large
quantities of heated dust accumulate as slag.
The suit alleged that Horsehead failed to follow safety
procedures that would have mandated a cooling-down period before
any work started, as well as warnings to all of the visiting
Tri-Alliance workers to keep out of the dust collection
Ferguson was in the chamber when hunks of still-hot slag began
falling from the ceiling and walls.
The burns Ferguson suffered included extensive burns in the anal
region that left him unable to control his bowels - a condition
that Duffy said may prove to be permanent if doctors are ultimately
unable to repair the damage.
Ferguson spent five months in the hospital after the accident
and has already undergone 17 surgeries, Duffy said.
Liability was solidly established in the discovery phase of the
case, Duffy said, because witnesses from Horsehead made a series of
admissions during their depositions that showed the company was
aware of its safety infractions.
In court papers, Mongeluzzi and Duffy wrote: "Horsehead admits
it ignored and blatantly violated every Horsehead safety rule and
federal OSHA law that was in place to warn contractors about, and
protect contractors from, the extreme safety hazard when entering
As a result, the plaintiffs lawyers argued, Ferguson "knew
nothing about falling, heavy chunks of molten-hot rock until the
first piece shattered his bones and burned the skin off his
In their brief, the plaintiffs lawyers noted that Horsehead had
discussed the emergency repair job with three other contractors,
all of whom turned down the job, before offering the job to
Tri-Alliance and demanding that work begin within two days.
The brief alleged that Horsehead employees "admittedly failed to
conduct a pre-job safety review."
Horsehead's safety manual called for the company's contract
coordinator to detail "any special hazards or safety requirements"
to the visiting contractor before any work could begin, the brief
said, but those procedures were allegedly ignored.
"Horsehead admittedly failed to 'detail' any special hazards or
safety requirements to Tri-Alliance. Thus, even though Tri-Alliance
scrambled to help Horsehead get the emergency work performed as
quickly as Horsehead needed it performed, when it came to helping
Tri-Alliance understand any safety hazards, Horsehead completely
ignored its own safety policies," the plaintiffs brief alleged.
Mongeluzzi said attorney Eunice Trevor took the lead in amassing
the evidence of Ferguson's damages and produced a settlement video
that "subtly but devastatingly presented the horrific nature of his
injuries and its impact on his life."
In court papers, the plaintiffs team showed that Ferguson, who
was 32 at the time of the accident, had incurred more than $2.3
million in medical costs; that he faced the prospect of more than
$1.7 million in future medical costs; and that economics experts
estimate his lost earnings in the range of $2.5 million to $3.5
Horsehead's lawyer, Kenneth M. Dubrow of The Chartwell Law
Offices, said in a brief interview that he and his firm were hired
to take over the defense of the case after discovery was completed
and mediation sessions had already been conducted.
Dubrow said that since taking over the case he worked toward
achieving a fair settlement, and that Horsehead is now looking
forward to pursuing its claims against Ferguson's employer for
contribution and indemnification.
Horsehead's mediation brief was filed confidentially.