TLC Trial Fires matter:  Major oil field worker safety case won by Colorado Trial Lawyers Randal Kelly (July ’10) and Mike O’Connell (July ’11)

     A $10.7 million verdict was delivered by a Greeley, CO jury in a very complicated oil field worker safety case which had previously been dismissed in a lower court, and was revitalized by TLC July ’10 Grad Randal Kelly, with the assistance of Mike O’Connell (July ’11).  Before trial, Randy was offered $225,000 for his client to settle. 

Randy took over this case in September 2010 after it had been badly handled by his client’s previous attorney. In September 2011, Randy got the Colorado Supreme Court to grant a C.A.R. 21 Petition to reinstate the critical claim against the critical defendant, Schneider Energy, which had been dismissed by the trial court. Upon winning that determination, and going back to the trial court before a different judge (the first judge had since retired), the surviving widow and family of Reyes Garcia was finally given an opportunity to tell their story to a jury. 

     Reyes Garcia was a gas-well worker on what is called in the industry “a work-over crew”. After wells have been drilled and “frac-ed”, this crew was responsible to clean out the remaining debris and contaminated water from the wells so that they could then be put into production.  These crews use three primary pieces of equipment to do this:  a rig truck with a 40′ tower and a drill over the well head, a huge pump to circulate the water, and a gigantic water tank called a “flat tank”.  During the process, gas can be released at the flat tank if a gas pocket is hit or if the debris coming out is real gassy.  The primary safety mechanism for the men is the spacing of the equipment since the pump and the rig are combustion sources. Distance and time equals safety on this type of worksite.

     Four different entities were on the site with layers of immunity, indemnity, master-service agreements, workers comp immunity, employee-employer obfuscation, sub-contracting and statutory employment issues. Two “non-parties” alleged to be at fault- Noble Energy (the well “operator”), and Leed Energy (the employer of Reyes Garcia which was responsible for providing men and equipment) – were immune from suit, but their negligence was nevertheless in issue.  Schneider Energy was the entity hired to supervise well operations and they hired William Smith to run the operations at the site – including safety.  Smith and Schneider Energy both claimed that Smith was an independent contractor.  Smith’s lawyer claimed that Smith was an employee of Noble, which would have also made Smith immune from suit, and Schneider Energy off the hook.

     While a gross simplification of the issues, the gist is that The American Petroleum Institute (“API”) recommends spacing of 100′ in between each piece of equipment.  On this particular site, the equipment was spaced less than 75′ apart, reducing the amount of time available for the workers to shut down the well and avoid an explosion if something did go wrong.   In July 2007, something went terribly wrong on this site when the crew detected gas coming from the flat tank and began shut down procedures.  Reyes was at the pump.  He was enveloped in flames in a flash fire, burned over 80% of his body, and fought to survive at the Western States Burn Unit. Reyes died on September 8, 2007 without ever speaking with his family again. 

     In the face of these facts, the defense paraded a number of witnesses who had never heard of the API spacing standard, and the ones who had heard of it said it wasn’t important and/or not relevant for these operations.  The defense also argued that any fault should be attributed to Leed Energy, (Reyes Garcia’s employer), because Leed had delivered and set up the equipment at the site. The defense claimed that Reyes Garcia was at fault because he voluntarily moved into the danger zone. They also claimed that Smith was immune from suit as he was “technically” a Noble employee. It was a knife fight. Randy and Mike fought the defense for 2 hours the night before closing on an “inherently dangerous activity” jury instruction, which they ended up convincing the Judge to give, and which raised the standard of care for the jury to consider. 

     Randy handled all the liability witnesses, the experts and Lorena Garcia (Reyes’ wife and a beautiful human being), as well as voir dire, open and close.  Mike came in a month before trial and handled the story that the family had to tell as well as the burn surgeon.   Louise Lipman and Josh Karton came to Denver a couple weeks before the trial to help with the family.  Louise had originally helped Randy and the family prepare for the first trial, in 2011, which was stayed when the Colorado Supreme Court took the case away from the first judge. It took almost five years to get this case to a jury.

     Mike O’Connell writes:  “In the end, we ended up with an all male jury and a less than enthusiastic female alternate who was allowed to deliberate.   I can’t begin to tell you how complex this case was.  There is probably not another attorney in Colorado who could have handled these issues besides Randy.  Ironically, his April 4, 2013 Durango verdict played into this because of the claim that Smith was a “statutory employee” (sic) of Noble – which would have gutted the case, and nobody knows this issue better than Mr. Kelly.  Randy was the very definition of what the TLC embodies.  I am, and will always be, deeply moved by how he handled this case and the trial.”

     The trial was held in Greeley, Colorado (Weld County) and was tried before Judge Todd Taylor.  The jury found Smith was indeed an employee of Schneider Energy.  They found this activity to be inherently dangerous.  And they found no comparative – 100% Smith (and of course, all imputed to Schneider on the respondent claim).  The verdict was $2,000,000 non-economic damages; $4.5 million on economic damages (medicals and lost future earnings); and with interest compounded over 5 years, the total verdict for Mr. Garcia’s surviving widow and family is $10,700,000.   [Accounting for some cap issues, the final judgment with interest will total $8.5 million.] 

     Note from TLC:  While some cases have huge verdicts, many do not.  But the consistent factor is that trial lawyers across this country fight for justice; they represent the common man who must go against typically huge corporate or government entities, with odds that are most often overwhelming.  Our congratulations to TLC grads Randal Kelly, Mike O’Connell and every other trial lawyer in this country who commits his or her life daily to obtaining justice.  Way to go!