Wake Forest Law Review

Fourth Circuit Denies Review of Administrative Order & Civil Penalties Following a Fatal Coal Mine Accident

By Kelsey Hyde

On November 10, 2016, the Fourth Circuit published an opinion in the case of Consol Buchanan Mining Company v. Secretary of Labor.  The Fourth Circuit denied Consol’s petition for review of an order by the Federal Mine Safety and Health Review Commission, finding the appellant mining company negligent and subject to penalties for violations of mining regulations. The Fourth Circuit found the administrative law judge did not err in finding that Consol had fair notice of the dangerous conditions, which ultimately led to the avoidable death of a miner, and that Consol’s actions constituted “unwarrantable failure” to comply with the applicable mine-safety regulations.

Appellant’s Fatal Mine Accident & Subsequent Proceedings

The fatal accident that ultimately led to this action occurred on January 11, 2012, in a Virginia coal mine operated by appellant, Consol Buchanan Mining Co. (“Consol”). Consol’s mine had a six-inch main line that supplied water for various uses, including firefighting and suppressing coal dust. The line was constructed with several valves to allow water flow for such uses. At one point, the water line was above the floor of the mine, but had since been buried by the accumulation of dust and debris over several years. Because the line runs adjacent to the equipment trackways, valves were regularly struck by machinery traveling on the tracks, and Consol was aware that these valves were being hit and damaged by moving equipment. Consol had also removed certain leverage bars provided by the manufacturer to open and close the valves.

On the day of the accident, Section Foreman Gregory Addington (“Addington”) had been assigned to help oversee two other miners move a shuttle car across the mine. During this process, the crew struck a fire valve extending out from the main waterline which split the valve and sent a fountain of water shooting out into the mine. Ultimately, they were unable to fully close the valve because of the excessive debris that had accumulated, and because the proper leverage bar was unavailable. Moreover, the damage to the fire valve made it unable to bear the necessary level of water pressure. The valve was suddenly ejected, fatally striking one of the miners.

Following the accident, the Mine Safety & Health Administration (“MSHA”) conducted an investigation and eventually concluded the accident had resulted from the failed closure of the inoperable valve. MSHA then petitioned the Federal Mine Safety & Health Review Commission (“Commission”) to assess civil penalties against Consol for violating two mine safety regulations: (1) failing to remove unsafe mining machinery or equipment from service, based on reusing the damaged fire valve, in violation of 30 C.F.R. § 75.1725(a); and (2) failing to ensure all firefighting equipment was maintained in a usable and operative condition, based on making the leverage bars unavailable and unable to ensure valves could be properly closed, in violation of 30 C.F.R. § 75.1100-3. After an evidentiary hearing, an administrative law judge (“ALJ”) from MSHA found Consol in violation based on their “unwarrantable failure” to comply with the respective regulations, and imposed a civil penalty of $70,000 per violation. After an unsuccessful petition for discretionary review by the agency, the ALJ’s decision was made final and Consol petitioned the Fourth Circuit for review.

Challenges & Standards of Review on Appeal

Through this appeal, Consol challenged the MHSA order on the following three grounds: (1) Consol lacked fair notice that their acts were in violation because MSHA had not previously cited them for such infractions; (2) Addington, the foreman in the accident, was not acting as Consol’s agent and therefore negligence could not be imputed ; and (3) the ALJ erred in finding Consol demonstrated heightened negligence through their failure to comply with the mining regulations.

The Fourth Circuit reviewed the ALJ’s factual findings as they relate to these challenges under the “substantial evidence” standard, which involves assessing “relevant evidence such that a reasonable mind might accept as adequate to support the conclusion.” Almy v. Sebelius, 679 F.3d 297, 301 (4th Cir. 2012). For any legal conclusions, the Fourth Circuit operated under the de novo standard, offering deference to the agency’s interpretations of ambiguities, when necessary. After a full review of the record as a whole, the court proceeded with each of Consol’s three separate challenges under these standards of review.

Court of Appeals for the Fourth Circuit Adopts the “Reasonably Prudent Miner” Test

The court disagreed with Consol’s contention that they were not given adequate notice that their conduct would constitute a violation, and were thus deprived of due process of law when penalized for the violations. Although the court recognized parties subject to administrative sanctions are so entitled to adequate notice of what would constitute proscribed conduct, whether a party lacks such adequate notice hinges on a fact-specific analysis. To make this determination in the specific context of mining and MSHA regulations, the Fourth Circuit chose to adopt the “reasonably prudent miner” test, that both the agency and other Circuit courts have employed in related cases. The test considers “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.” DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014).  The court found this rule more conducive with Congress’s intent to place the responsibility of maintaining safety on the mine operators, as well as the practical limitations of administrative agencies enforcement power if a rule of explicit notice for all potential violations were required. Applying this objective standard to the present case, based on all evidence in the record, the court found that a reasonably prudent miner would indeed recognize that actions and ongoing conditions at Consol’s mine were in violation of MSHA regulations, certainly placing miners at risk, and, thus, Consol had fair notice that their actions could result in sanctions.

Foreman Addington was an agent of the Mine Operator

            The court also disagreed with Consol’s assertion that Addington, the foreman involved in moving the shuttle car that eventually caused the accident, was not an agent of Consol. The court instead found the Addington’s negligence was properly considered in assessing Consol’s negligence. Here, the court looked to the Mine Act, which allows a mine operator to be liable for the negligence of anyone who qualifies as an “agent”, defined as any person “charged with responsibility for the operation of all or part of a coal or other mine or the supervision of the minders in a coal or other mine.” 30 U.S.C. § 802(e). Furthermore, applications of this definition by the agency itself, as well as courts of other Circuits, have yielded a broad definition of agency, not limited to concepts of liability at common law, but instead focused on whether the miner exercised managerial or supervisory responsibilities at the time of his negligent conduct. Here, the court found the ALJ properly determined Addington was serving as a supervisor of the other miners, and therefore Consol’s “agent.” The court did consider the record as a whole, but found the testimony of other miners, referring to Addington as “the boss” and indicating they would have certainly followed his instructions at the time of this valve accident, as most dispositive of his supervisor role at the time of this negligent conduct that led to the accident. As such, the court held that there was indeed substantial evidence to support the ALJ’s conclusion that Addington was Consol’s agent. 

The ALJ Did Not Err in Finding Appellant’s Violations Were “Unwarrantable Failure” to Comply with MSHA Regulations

            Consol’s final challenge, disputing the ALJ’s finding of aggravated negligence based on their “unwarranted failure” to comply with mining regulations, was similarly denied by the Fourth Circuit. An unwarranted failure to comply with such regulations involves conduct otherwise inexcusable or not justifiable, such that the aggravating conduct amounted to more than ordinary negligence. In the initial order, the ALJ considered a variety of “aggravating factors” to determine whether the operator’s conduct was not justifiable, including: the length of time of violative condition, a high degree of danger, the obviousness of the violation, any efforts to abate violative condition, notice of violation, or notice of necessity for further efforts to reach compliance. Again, reviewing the record as a whole under the “substantial evidence” standard, the court found substantial support for the findings regarding Consol’s display of these aggravating factors, including: the extended period of time over which the violations persisted, the obviousness of the open and broken valve, the significant danger these conditions posed to miners, Consol’s knowledge of frequent instances of damage to the valves, and even a prior incident of injury involving the damaged valves. Accordingly, the court found no error in the ALJ’s finding that Consol demonstrated an aggravated lack of due care, more than ordinary negligence, in failing to remedy these dangerous conditions of which they were on notice.

Fourth Circuit Denies Petition for Review

            Upon finding no error in the ALJ’s conclusions that appellant Consol had fair notice of dangerous conditions, and that the fatal accident in question occurred based on Consol’s unwarrantable failure to comply with the applicable regulations, the Fourth Circuit denied Consol’s petition for review of the agency’s order and imposition of civil penalties.

Businessman with files

By Taylor Anderson

On January 14, 2016, the Fourth Circuit issued its published opinion regarding the civil case Cisson v. C.R. Bard, Inc. The appellant, transvaginal mesh proprietor C.R. Bard, Incorporated (“Bard”), raised four issues on appeal. In addition, the appellee, Donna Cisson (“Cisson”) cross-appealed the district court’s finding regarding punitive damages. The Fourth Circuit affirmed the district court’s judgment as to all issues raised on appeal.

Cisson Alleged Design Defect

On May 6, 2009, Cisson was implanted with the Avaulta Plus, a transvaginal mesh medical device developed and marketed by Bard. This device addressed pelvic organ prolapse and stress urinary incontinence. Three months after implantation, Cisson’s doctor diagnosed her with “an adhesion band” of scar tissue that was causing Cisson pain. Dr. Raybon resected the mesh, which involved cutting out a thick band of scar tissue and mesh encased in the tissue. A few months later, Cisson went to a different doctor who explanted the Avaulta Plus from Cisson’s body, although complete removal of the mesh was not possible.

Complaining that the surgical mesh marketed by Bard caused ongoing “loss of sexual feeling” and “severe pain with intercourse and otherwise,” Cisson filed a lawsuit against Bard in March 2011. Cisson’s claims for design defect, failure to warn, and loss of consortium proceeded to trial.

Cisson presented evidence that the Avaulta Plus caused her injuries. Furthermore, Cisson also presented evidence that painted a picture of Bard as ignoring the warning signs that its product could cause injuries. One piece of such evidence was a material data safety sheet (“MSDS”) received from the corporation that manufactured the polypropylene pallets used to extrude the Avaulta Plus mesh. The MSDS contained an explicit warning that polypropylene should not be used in short- or long-term human implantations.

Ultimately, the jury credited Cisson’s evidence, awarding damages for the design defect and failure to warn claims. The jury awarded Cisson $250,000 in compensatory damages and awarded an additional $1.75 million in punitive damages. The punitive damages award was split pursuant to a Georgia statute, with seventy-five percent going to the State of Georgia and twenty-five percent going to Cisson. The jury returned a verdict for Bard on the consortium claim. Bard timely appealed.

Bard Believed Compliance Evidence Should Have Been Admissible

Bard’s first issue on appeal was that the district court abused its discretion by granting Cisson’s motion in limine asking the court to exclude all evidence that Bard had complied with the Food & Drug Administration’s (“FDA”) 510(k) process. The district court excluded the evidence under Federal Rule of Evidence 402 for lack of relevance and under Rule 403 for being substantially more prejudicial than probative.

After noting that district courts have “broad discretion” in deciding whether “the probative value of evidence is substantially outweighed by the danger of unfair prejudice, misleading the jury, or confusion of the issues” under Rule 403, the Fourth Circuit affirmed the district court’s ruling. The Fourth Circuit focused mainly on the fact that Bard’s compliance with the FDA’s 501(k) process did not prove that the product was safe. This alone presented substantial dangers of misleading the jury and confusing the issues. The district court excluded this compliance evidence so that the jury would not confuse Bard’s compliance with the safety of Bard’s product, and the Fourth Circuit affirmed this decision.

The Fourth Circuit did not reach the district court’s ruling that that 501(k) evidence could be excluded as irrelevant under Rule 402 because the evidence was properly excluded under Rule 403.

Bard’s Hearsay Objections Were Meritless

Bard’s second issue on appeal was that the district court erred when it overruled Bard’s hearsay objections to the admission of the MSDS pertaining to polypropylene, a material used in the construction of the Avaulta Plus implanted in Cisson’s body. The MSDS at issue contained a warning and disclaimer stating that the polypropylene should not be used “in medical applications involving permanent implantation in the human body.” The district court admitted the MSDS for the limited purpose of showing that the statement was made and that Bard was aware of it. The district court also ruled that the MSDS was admissible for substantive purposes under the hearsay exceptions contained in Federal Rules of Evidence 803(17), 803(18), and 807.

The Fourth Circuit reversed the district court’s rulings as to the hearsay exceptions; however, the Fourth Circuit affirmed the decision to admit the MSDS as non-hearsay. First, the Fourth Circuit held that the MSDS did not fall within Rule 803(17)’s “Market Reports and Similar Commercial Publications” hearsay exception because the MSDS did not contain factual information as required by this exception. Instead, the MSDS operated as a warning and disclaimer of liability for the self-interested issuing party. For this reason, Rule 803(17) did not apply. Second, the Fourth Circuit held that the MSDS did not fall within Rule 803(18)’s “Statements in Learned Treatises, Periodicals, or Pamphlets” hearsay exception because the MSDS was not “relied on by [an] expert on direct examination,” nor was it “called to the attention of an expert witness on cross-examination” as required by Rule 803(18). For this reason, the MSDS did not fall under Rule 803(18)’s exception. Lastly, the Fourth Circuit held that the MSDS did not fall within Rule 807’s “Residual Exception” because there was other evidence available to address polypropylene’s viability as a material for surgical implants, such as studies, reports, empirical evidence, and tissue sample slides. Because the MSDS evidence did not fall within the hearsay exceptions enumerated in Rule 803(17), 803(18), or 807, the MSDS evidence was not admissible as substantive evidence. For this reason, the Fourth Circuit reversed the district court’s rulings as to these hearsay exceptions.

Although the Fourth Circuit reversed the district court’s rulings as to the hearsay exceptions, it affirmed the district court’s decision to admit the MSDS evidence as non-hearsay. The Fourth Circuit agreed with the district court that Cisson used the MSDS to show that Bard had received warning that its product might be unsafe. Bard did not dispute this non-hearsay purpose on appeal, but argued instead that Cisson used the MSDS for its truth during the trial, which is not allowed because the MSDS did not fall within one of the hearsay exceptions. The Fourth Circuit disagreed with Bard and held that “even if Cisson did at any time use the MSDS for its truth, she did so in a way that did not prejudice the defendant.” Because Cisson’s use of the MSDS did not prejudice Bard, the alleged error was harmless. The Fourth Circuit affirmed the district court’s admission of the MSDS evidence.

Bard Argued the Jury Instruction as to Causation

Bard’s third issue on appeal was that the district court erred in its instruction to the jury on causation, as well as in its subsequent ruling upholding the jury’s causation finding pursuant to its denial of Bard’s renewed motion for judgment as a matter of law. Bard charged that it was prejudiced because the court’s causation instruction did not reflect Georgia law.

Bard’s position was that Georgia law required injury causation be proved by “expert testimony stated to a reasonable degree of medical probability or certainty.” The Fourth Circuit disagreed and noted that “Bard’s characterization of Georgia law incorrectly states the standard of proof applicable here, inserting the standard for medical malpractice cases into this products liability case.” Additionally, Bard did not point to a single Georgia case stating that the standard in the pattern instruction was incorrect. For these reasons, the Fourth Circuit held that the district court did not err in giving the Georgia pattern jury instruction.

Additionally, the Fourth Circuit held that Cisson presented ample expert and non-expert testimony for a jury to find that the design defect caused her injuries; therefore, the district court correctly upheld the jury’s causation finding and correctly denied Bard’s renewed motion for judgment as a matter of law.

The Punitive Damages Award Was Not Unconstitutional

Bard’s final issue on appeal was the jury’s award of $1.75 million in punitive damages. Bard pointed to the Due Process Clause of the Fourteenth Amendment which prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. Bard cited the Supreme Court of the United State’s decision in State Farm Mutual Automobile Insurance v. Campbell, where the Court stated “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” The punitive damage award in this case was seven times the $250,000 compensatory damages award.

The Fourth Circuit held that Bard, relying on the above statement from Campbell, apparently failed to realize that the Court went on to say “these ratios are not binding” and concluded that “[s]ingle-digit multipliers are more likely to comport with due process . . . than awards with ratios in the range of 500 to 1.” Also, the Fourth Circuit pointed to the district court’s finding that the punitive damages against Bard arose from its misconduct that resulted in Cisson’s injuries and grounded its refusal to overturn the award in reprehensibility of Bard’s conduct. Therefore, the Fourth Circuit held that the seven-to-one ration was not constitutionally excessive and affirmed the district court’s decision.

Cisson’s Cross-Appeal Was Unsuccessful

The final issue before the Fourth Circuit was Cisson’s cross-appeal that challenged the district court’s ruling that a Georgia split-recovery statute garnishing seventy-five percent of the punitive damages award arising from a product liability judgment does not violate the Takings Clause of the Fifth Amendment of the United States Constitution.

The Fourth Circuit noted that to succeed on this issue, Cisson must first show that she has “a constitutionally protected property interest” in the punitive damages award at issue; however, Cisson made no such claim. Additionally, Cisson does not explain how Georgia exceeded its authority by defining the contours of the right it allegedly created. For these reasons, the Fourth Circuit affirmed the judgment of the district court as to this issue.

Judgment Affirmed

For the aforementioned reasons, the Fourth Circuit affirmed all of the issues raised on appeal.

By: Lauren Durr Emery

Are Corrections Officers Entitled to Qualified Immunity from Suits Involving Strip Searches of Arrestees not Charged in Crimes Involving Weapons, Drugs, or Felony Violence?

In Dana West v. Susan Murphy, the Fourth Circuit heard a challenge regarding the constitutionality of strip searches of arrestees at Baltimore Central Intake and Booking Center.

Arrestees Subjected to Strip Search at Baltimore Central Intake and Booking Center

The named plaintiffs in this case represent a certified class of individuals who were arrested between May 12, 2002 and April 30, 2008 “(a) on charges [or in cases] not involving weapons, drugs, or felony violence, and (b) strip searched (c) prior to or without presentment before a court commissioner or other judicial officer.”  Following the strip searches, the arrestees remained in holding rooms while they waited to see a court commissioner.  Under Maryland law, the detainees must appear before a court commissioner within twenty-four hours of arrest.

The holding rooms at Central Intake may contain up to twenty-five arrestees at a time.  However, over the course of their stay, arrestees may encounter many more people due to the coming and going of individuals into the holding room.  The named plaintiffs encountered 55, 36, 35, and 20 people respectively who had been arrested for a wide variety of crimes.

Determining Whether an Officer Receives Qualified Immunity is a Two-Pronged Inquiry

To overcome a correction officer’s right to qualified immunity, a plaintiff must demonstrate: (1) That the facts make out a violation of a constitutional right; and (2) that the the right at issue was clearly established at the time of the defendant’s alleged misconduct.

No Clearly Established Law Regarding Strip Searches of Detainees Held Outside the General Population During the Time in Question.

The Court stressed that the temporal requirement for qualified immunity is important because it is closely related to the issue of notice.  Thus, the Supreme Court decision (Florence v. Board of Chosen Freeholders of County of Burlington) cited by the defendants and decided almost four years after the class of plaintiffs closed, does not demonstrate whether or not the law on jail strip searches was clearly established at the time the alleged searches were conducted.

The Court also distinguished three cases (finding strip searches unconstitutional) cited by the plaintiffs.  The Court stated that the searches in question “were unconstitutional because there were no security reasons strong enough to justify the intrusive and public nature of the searches.”  In contrast, the Court found the searches conducted at Central Booking, to have been conducted in a more private setting and to have been justified by heightened security concerns.

The Court ultimately concluded that the state of the law at the time of the alleged search was undeveloped and thus it would be impermissible to “tax correctional officers with clairvoyance.”

Correctional Officers Entitled to Qualified Immunity 

Without needing to reach the constitutionality of the alleged searches, the Court found that the officers were entitled to qualified immunity.

Though in agreement with the holding, Judge Wynn wrote a separate concurrence to stress the importance of addressing the legality of strip searching detainees held outside the general population.  Since the Court did not reach the merits of plaintiffs’ constitutional claim, Wynn suggests that correctional officers are left adrift without guidance regarding the constitutionality of such searches.

By: M.H. Matthews*

Matthews_LawReview_December2009

* Fellow in Law, University College, Oxford; CUF Lecturer in Law, Oxford University. In writing this Article I have, with the kind permission of the Oxford University Press, drawn on the material that appears in chapter 3 of MARTIN MATTHEWS, JONATHAN MORGAN & COLM O’CINNEIDE, HEPPLE & MATTHEWS’ TORT: CASES AND MATERIALS (6th ed. 2008). I have also benefited from the comments of David Partlett and Mike Green, and additionally from views expressed at the Symposium. The usual exemption applies.

By: Victor E. Schwartz*

Phil Goldberg**

Christopher E. Appel***

SchwartzGoldbergAppel_LawReview_September2009

* Victor E. Schwartz is Chairman of the Public Policy Group in the Washington, D.C., office of the law firm of Shook, Hardy & Bacon L.L.P. He coauthors the most widely used torts casebook in the United States, PROSSER, WADE AND SCHWARTZ’S TORTS (11th ed. 2005). He has served on the Advisory Committees of the American Law Institute’s Restatement (Third) of Torts: Products Liability, Apportionment of Liability, General Principles, and Liability for Physical and Emotional Harm projects. Mr. Schwartz received his B.A. summa cum laude from Boston University and his J.D. magna cum laude from Columbia University.

** Phil Goldberg is an attorney in the Public Policy Group in the Washington, D.C., office of Shook, Hardy & Bacon L.L.P. He has served as an aide to several Democratic members of Congress. Mr. Goldberg received his B.A. cum laude from Tufts University and his J.D. from The George Washington University School of Law, where he was a member of the Order of the Coif.

*** Christopher E. Appel is an attorney in the Public Policy Group in the Washington, D.C., office of Shook, Hardy & Bacon L.L.P. He received his B.S. from the University of Virginia’s McIntire School of Commerce and his J.D. from Wake Forest University School of Law.

By: Mark A. Geistfeld*

Geistfeld_LawReview_September2009

* Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law. In addition to those who gave me helpful comments at the Symposium, I am also indebted to my colleagues in the New York City Torts Group for their instructive insights. © Mark A. Geistfeld.