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 case.
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. Varricchio.
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 punitive damages.
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 chamber.
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 dust catchers.”
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 body.”
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 million.
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.