Dangerous Condition – Worker/Workplace Negligence – Workplace Safety
Case: Gabriel Nicholas Escalera v. Live Oak Cogen, LLC; WCAC Operation Company California, LLC; Consolidated Asset Management Services, Inc.; Miami Boiler and Machine Co.; Charles Kent Porterfield; and Aquatech International Corporation. No. S-1500-CV-278406
Court: Superior Court of Kern County, Kern
Judge: David R. Lampe
Plaintiff Attorney(s): John C. Hall, Law Offices of John C. Hall, Bakersfield, CA
Timothy M. OSborn, Law Office of Timothy M. Osborn, P.C., Bakersfield, CA
Defense Attorney(s): Anthony N. DeMaria, McCormick, Barstow, Sheppard, Wayte & Carruth LLP, Fresno, CA (Aquatech International Corporation)
Manual Gracia, Peel, Garcia & Stamper LLP, Fresno, CA (Charles Kent Porterfield, Consolidated Asset Management Services, Inc., Live Oak Cogen, LLC, WCAC Operating Company California, LLC)
None Reported, Fresno, CA (Miami Boiler and Machine Co.)
Facts & Allegations In October 2012, plaintiff Gabriel Escalera, 33, a project foreman, was at the Live Oak Cogen cogeneration plant, a natural gas-fired power plant located in an oil field about 1.5 miles west of South Granite Road, north of Bakersfield. Escalera and a coworker were at the plant using high pressure air to test the bottom of a war storage tank for leaks when the pressurized air caused the tank bottom to fail. This caused a chain reaction that threw Escalera and the coworker up into the air. The coworker ultimately died at the scene and Escalera sustained injuries to his legs and pelvis.
The Coworker’s family settled their claims.
Escalera sued Live Oak Cogen, LLC; WCAC Operating Company California, LLC; Consolidated Asset Management Services Inc.; Miami Boiler and Machine Co.; Charles Kent Porterfield; and Aquatech International Corp.
Miami Boiler was ultimately dismissed from the case, and Aquatech International settled with Escalera. Thus, the matter continued against Live Oak Cogen, WCAC Operating Company California, Consolidated Asset Management and Porterfield.
Escalera claimed the defendants failed to have proper lockout or ragout procedures. He also claimed the defendants knew there were corrosion issues with the subject tank going back four years before the subject incident, so the defendants should not have directed the use of pneumatic testing.
Defense Counsel contended that Escalera and his employer, Bramha Group Inc., were negligent in the performance of their work and pneumatic testing and that Escalera did not follow Bramha’s prescribed repair and testing protocol.
Injuries/Damages: fracture, leg; fracture, pelvis; fracture, tibia; hardware implanted
Escalera sustained fractures to both legs, as well as multiple fractures to his pelvis. He subsequently was taken to a hospital, where he underwent surgical fixation and reduction.
Escalera suffered non-union of his tibia. He claimed he is able to walk, but he has problems with his gait and is in chronic pain. He also claimed he has been reduced to sedentary employment. In addition, Escalera claimed he requires additional surgery on his tibia, which includes the removal of the previously implanted hardware.
Result: The jury determined that Escalera’s employer, Bramha, was 78 percent liable; that Live Oak Cogen, WCAC Operating Company California, Consolidated Asset Management and Porterfield were 12 percent liable; and that Escalera was 10 percent liable. It also determined that Escalera’s damages totaled $14,271,000, including $11.5 million in non-economic damages and $2,771,000 in economic damages.
Based on the percentage of the Live Oak defendants’ fault (12 percent), the non-economic damages award was reduced to $1.38 million. However, the parties are jointly and severally liable for the economic damages, but since Bramha was Escalera’s employer, the Live Oak defendants were responsible for 90 percent of the economic damages (the Live Oak defendants’ 12 percent liability plus Bramha’s 78 percent liability), reducing that award to $2,493,900. Thus, Escalarea’s total reduced award would be $3,873,900 which includes $1.38 million in reduced non-economic damages and $2,493,900 in reduced economic damages.
Gabrial Nicholas Escalera
$336,000 past medical cost
$1,000,000 future medical costs
$135,000 past lost earnings
$1,300,00 future lost earnings
$500,000 past pain and suffering
$11,000,000 future pain and suffering
Demand: $4.5 million (C.C.P. 998)
Trial Length: 3 weeks
Trial Deliberations: 6 hours
Jury Vote: 9-3 liability
Jury Composition: 5 male, 7 female
Plaintiff Expert(s): None reported
Defense Expert(s): Steven D. Koobatian, Ph.D., vocational rehabilitation, visalia, CA
Mack A. Quan, Ph.D., mechanical, El Segundo, CA
Ted Vavoulis, M.S., economics, Los Angels, CA
Editor’s Note: This report is based on information that was provided by plaintiff’s counsel, and counsel for Live Oak Cogen, LLC; WCAC Operation Company California, LLC; Consolidated Asset Management Services Inc.; and Charles Ken Porterfield. Counsel for Aquatech Internationtal Corp. did not respond to the reporter’s phone calls and counsel for Miami Boiler and Machine Co. was not asked to contribute.
By: Priya Idiculla
originally published in VerdictSearch Vol. 13 Issue 37 September 22, 2014