Page 48 - MetalForming September 2010

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475 dehlke@ehlkelawoffices.com
From the dearth of reported cases, few, if any, workplace injury inten- tional tort lawsuits are being brought today. There could be several reasons for that:
• Tort reform narrowing such actions,
• The higher burden-of-proof requirements for the liability thresh- old, and
• Even shorter statute-of-limitations deadlines to bring such cases.
For whatever reason, the current focus of tort civil claims in workplace accidents seems to be on plaintiff attorney investigations probing for “third-party” actions, i.e. negligence in the design, installation, servicing or maintenance of the machinery or equipment by companies or persons who are not in any employment rela- tionship with the injured plaintiff- employee.
Below is a somewhat typical initial set of plaintiff attorney inquiry areas. These are the questions a plaintiff ’s attorney likely will ask an employer when the attorney knows that the employer is immune from any civil tort lawsuit over the workplace injury or fatality and is seeking solely to pur- sue a “third party” claim.
1) Who was in charge and responsi- ble for the
• Design,
• Installation and
• Determining what guards are need-
ed on the equipment to comply with OSHA regulations?
2) Who put all of the equipment together?
3) Where can I find the history of design and installation activities?
4) When was the installation com- pleted?
5) When was the first day of equip- ment usage?
6) Was the equipment always designed by XYZ to not have guards? 7) Who designed the whole thing?
8) Who prepared the layout and design?
9) So basically, did you as the employer decide what equipment you wanted for this facility?
10) How did you intend the equip- ment to work?
11) How did the design roles between employer and outside design company interact?
12) Who was responsible for servic- ing the equipment?
13) This was an accident with sig- nificant injuries, so if we can’t come up with a negligent basis of an outside third-party company, and help cover your workers’ comp costs, then nothing can be done?
14) Mr./Ms. Employer, if you were in this injured young man’s or woman’s shoes, who would you go after? What would you do?
15) Are you aware of any OSHA or engineering standards violated?
(The employer should expect to receive a request not to destroy any of the design drawings or equipment pur- chase documents.)
16) Are there any drawings not in the OSHA inspection file?
17) Are there any additional docu- ments about this accident equipment? 18) Whom do we contact for addi-
tional information?
19) When can we come see the acci-
dent equipment? MF www.metalformingmagazine.com
44 METALFORMING / SEPTEMBER 2010
YOU & THE LAW DOUGLAS B.M. EHLKE
Third-Party Inquiries About Workplace Accident