IN THE CIRCUIT COURT OF BOONE COUNTY, WEST VIRGINIA

TAMMY MORGAN, Individually

and as Administratrix of the Estate
of Adam K. Morgan, cÇ(Q)WV'1r
Plaintiff,
r7
vs. Civil Action No. ll-C- t/
MASSEY ENERGY COMPANY,
a Delaware corporation,

MASSEY COAL SERVICES, INC., (j')

a West Virginia corporation, C-:rC)
)>::;:j C,)
PERFORMANCE COAL COMPANY, C)
a West Virginia corporation, t"-,::=
CO]

..-J
_.u.
C"":.l -~()
c") C)
r--
Defendants. -0 r
,--,
1'1","__.
rA.- ~~~:~:-<
",-
C/'\
C) r-'l
o
COMPLAINT

Comes now Tammy Morgan, individually and as the Administratrix of the Estate of

Adam K. Morgan, and sets forth her Complaint against the defendants named herein.

Introduction

This Complaint is filed against the named defendants as a result of a mine explosion at

the Upper Big Branch Mine (MSHA ID 46-08436) on April 5, 2010. Twenty-nine miners,

including plaintiff's decedent, Adam K. Morgan, were killed in this mine explosion and other

miners were severely injured. Based upon information learned through the investigating agencies

of the state and federal government, the plaintiff files this Complaint against the defendants

seeking compensatory and punitive damages as a result of the willful, wanton and recklessly

unsafe manner in which the defendants operated the Upper Big Branch Mine and caused the
death of her decedent.

Defendant Performance Coal, as decedent's employer, is liable to the plaintiff for its

violation of West Virginia's deliberate exposure law whereas Performance, by its agents,

knowingly exposed the decedent to specific unsafe working conditions contrary to federal, state

and industry safe workplace regulations and standards.

Defendant Massey Coal Services, Inc., is an affiliated but separate company from

Performance Coal, but as a Massey Energy subsidiary, voluntarily or by direction of parent

Massey Energy, undertook certain engineering and safety duties at the Upper Big Branch Mine

which it failed, through its employees and agents, to perform in a reasonably prudent manner. As

such, Massey Coal Services, Inc., is liable to the plaintiff for its acts and omissions which

proximately caused the death of plaintiff s decedent.

Defendant Massey Energy Company, is the parent of, but separate from, Performance

Coal. Massey Energy, by and through its agents, including, but not limited to CEO Don

Blankenship and members of its Board of Directors, were intimately involved in the mining

activities at the Upper Big Branch Mine. Don Blankenship was actually aware of the unsafe

manner in which the Upper Big Branch Mine was operated as his involvement necessarily

included his knowledge of the staggering number of safety violations issued by safety authorities

to Performance Coal related to the Upper Big Branch Mine prior to the explosion. Members of

the Massey Energy Board of Directors likewise voluntarily assumed active duties and

responsibilities for the monitoring and oversight of workplace safety compliance at subsidiary

mines such as Upper Big Branch by way of a written settlement agreement to a shareholder

derivative suit executed on June 30, 2008. The intimate involvement by Don Blankenship in the

2
activities at Upper Big Branch and his knowledge of the abysmal safety record of the mine reflect

a gross negligent or reckless indifference to workplace safety and as a result as an agent of Massey

Energy, Don Blankenship's negligent or reckless management in the operations at Upper Big

Branch make Massey Energy liable to plaintiff for the death of her decedent. Furthermore, the

negligent and reckless manner in which the members of the Board of Directors performed or

failed to perform the safety oversight and management duties they voluntarily assumed in the

settlement of the shareholder derivative suit, resulted in the Upper Big Branch Mine continuing to

operate when a reasonably prudent Board would have shut it down or made management changes

to ensure the mine was operated in compliance with state, federal and industry safety standards.

As such, Massey Energy is liable to the plaintiff for the death of her decedent by way of the

negligent and reckless acts of its Officers and its Board of Directors.

Facts

1. Plaintiff Tammy Morgan is the mother and personal representative of the Estate of

Adam K. Morgan who was killed on AprilS, 2010, in the mine explosion in the Performance Coal

Company Upper Big Branch Mine.

2. Plaintiff Tammy Morgan is a citizen and resident of Wyoming County, West

Virginia, and was duly appointed the Administratrix of the Estate of Adam K. Morgan on April

19,2010.

3. Defendant Performance Coal Company ("Performance"), is a West Virginia

corporation with its principle place of business located at Montcoal, West Virginia. It is engaged

in the business of extracting and selling coal from mining operations in Boone and Raleigh

3
Counties which include the Upper Big Branch Mine. The West Virginia Secretary of State also

lists for Performance the d/b/a Upper Big Branch Mining Company. The Upper Big Branch Mine

encompasses areas in both Boone and Raleigh County, West Virginia, thereby placing the site of

the actions giving rise to this matter in whole or in part in Boone County, West Virginia.

4. Defendant Massey Coal Services, Inc. ("MCS"), is a West Virginia corporation

with its principal place of business in Julian, Boone County, West Virginia. MCS is a subsidiary

and affiliate of defendant Massey Energy Company, and provides to the parent's subsidiaries

safety and engineering services by directive of Massey Energy Company's corporate policies.

These activities undertaken by MCS included for the Upper Big Branch Mine, the promulgation,

dissemination, adoption and use of, monitoring and compliance with Massey Energy and MCS's

S-l safety standards and the provision of mine engineering services and advice from MCS to

Performance.

5. Defendant Massey Energy Company ("MEC"), is a Delaware corporation, with its

principal offices in Richmond, Virginia. MEC is engaged in the extraction and sale of coal from

mines it either directly owns and operates or from mines operated by its subsidiary "resource

groups" as they are called. MEC Executive and Board-level management voluntarily undertook

duties and responsibilities commensurate with the daily operations at the Upper Big Branch Mine.

6. Jurisdiction and venue are proper before this Court since the acts and omissions

giving rise to this action occurred all or in part in'Boone County, West Virginia, and defendant

MCS has its principal offices located in Boone County, West Virginia.

7. Decedent Adam Morgan was employed by defendant Performance as a

red hat miner at the Upper Big Branch Mine on and before AprilS, 2010.

4
 8. Defendants Performance, MCS and MEC ("Massey defendants") are, and at all

times relevant were, responsible for the supervision, safety and oversight of the Upper Big Branch

Mine. As such, the Massey defendants were responsible for providing safe working conditions at

the Upper Big Branch Mine on and before April 5, 2010.

9. Defendant Performance, by and through its management personnel at the Upper

Big Branch Mine, was responsible for the inspection of the working areas of the mine for safety

hazards and for the correction of all safety hazards discovered in the inspections.

10. Defendant Performance, by and through its management personnel at the Upper

Big Branch Mine, was responsible for compliance with all required and approved state or federal

mining plans applicable to the Upper Big Branch Mine, including ventilation, methane and dust

control plans.

11. Defendant Performance, by and through its management personnel at the Upper

Big Branch Mine, was responsible for the safe operating condition of all mining equipment in

conformity with the manufacturer's specifications and original design and in conformity with the

approved mining plans for the mine.

12. Defendant Performance, by and through its management personnel at the Upper

Big Branch Mine, was responsible for the removal, control or dilution of explosive methane gas

and coal dust on and before Apri15, 2010.

13. Previous to April 5, 2010, the Upper Big Branch Mine had an abysmal safety

record. The safety record at the mine dramatically declined between 2008 and 2010. As evidence

of the abysmal safety record of this mine, the following information was known to all Massey

defendants or easily available to their management since the information was a matter of public

5
and corporate record:

a. The number of MSHA issued violations more than doubled from 2008 to

2009;

b. Proposed fines from MSHA inspectors, which factor in the seriousness of

the violations and the safety attitude of the mine managers, more than

tripled to $897,325.00;

c. Violations categorized as "serious and substantial" in 2009 alone reached a

total of 202, which is almost equal to the 204 such violations for the entire

2 year period before (2007 and 2008) combined;

d. In the first quarter of2010, there were 124 violations and 53 assessed

penalties totaling $188,769.00;

In December 2007, the mine was placed on the pattern of violations status
e.

based on its safety record and but for a computer error at MSHA would

have been on pattern of violation status on and before AprilS, 2010;

f. In 2009, MSHA issued 54 withdrawal orders to the mine of which 48

included a finding of unwarrantable failure to comply with mine safety laws

and 4 involved a failure to abate previous violations;

g. In 2010, prior to the explosion, 7 withdrawal orders had already been issued

to the mine and 6 of those included findings of unwarrantable failure to

comply with mine safety laws and 1 involved a failure to abate a previous

violation;

h. In the twelve months preceding the mine explosion, the mine was cited 38

6
 times for mine ventilation violations and 37 times for unsafe accumulations

of combustible materials (coal dust).

14. With the number of mine safety violations which existed and had been allowed to

exist under the defendant's collective management of the Upper Big Branch Mine, on AprilS,

2010, the Upper Big Branch Mine was a catastrophe waiting to happen.

15. No reasonably prudent parent company such as in the position ofMEC would

have allowed such an unsafe operation to continue. Despite the knowledge of CEO Don

Blankenship that this mine was being operated in such an unsafe fashion; despite CEO Don

Blankenship's authority to shut the mine down or change its management; despite the knowledge

of the MEC Board that this mine was being operated in such an unsafe fashion; and, despite the

MEC Board's authority to shut the mine down or change its management, defendant MEC's

executive and board management allowed the mine to continue to operate.

16. As of this date, the state and federal mine authorities have conducted an extensive

investigation of the Upper Big Branch Mine explosion. That investigation has involved some 261

individuals being interviewed and testing of mine equipment and sampling of materials in the

mme.

17. As of this date, 18 Massey employed management level employees,

including MEC CEO Don Blankenship and Performance Coal President Chris Blanchard have

5th
exercised their Amendment rights against self-incrimination and refused to testify or explain

their actions and omissions which might have contributed to the mine explosion. Additionally the

head of security for the Upper Big Branch Mine was indicted in the United States District Court

for the South District of West Virginia for lying to federal authorities in the Upper Big Branch

7
mine explosion investigation. Specifically, Hughie Elbert Stover illegally destroyed documents

requested by the federal government and was not truthful about his role and directives in warning

mine management at Upper Big Branch that mine inspectors were about to enter the mine. In

doing so, many known violations of mine safety law would be corrected before inspectors could

the actual day to day working

see them. As a result, mine safety officials were unable to view

conditions.

18. Inasmuch as the safety violations which caused the April 5,2010, mine explosion

managed by the defendants, the Upper

were the direct result of the manner in which the mine was

Big Branch Mine explosion was not an "act of God".

19. In the days and shifts preceding the explosion, numerous areas at and near the face

be in
and on the belts headed outby were inspected by Performance management and found to

need of rock dusting which is the application of finely ground limestone dust to bind to and

prevent the suspension in air of dangerously explosive coal dust.

20. Despite the findings of the need for safely addressing explosive coal dust present

in the mine, mine management did not apply rock dust to the areas of the mine where the

explosive coal dust was noted.

21. Prior to and on April 5, 2010, Performance Coal utilized a longwall mining

designed by the
machine to conduct mining operations in the Upper Big Branch mine. As

its shear
manufacturer, the longwall mining machine was equipped with water spray nozzles on

dust
head to prevent sparks when the cutting bits struck rock; to reduce the explosive coal

floating in and around the cutting head and to extinguish any flash fire or ignition that might occur

when pockets of methane gas were encountered.

8
 22. Prior to and on AprilS, 2010, Performance Coal with full knowledge of mine

management operated the longwall machine with many of the spray nozzles missing, broken or

even welded closed. As a result, the longwall shear head operated without legally mandated and

manufacturer specified water sprays. Additionally, bits on the shear were dull which resulted in

increased sparks when striking rock in the mining process.

23. Prior to and on AprilS, 2010, Performance Coal had encountered adverse roof

conditions in the headgate and tailgate side of the longwall section which in turn decreased or

adversely affected the ventilation of the longwall section.

24. The roof conditions were so adverse in the headgate of the active longwall section

that the headgate could not be used as the tailgate for the next longwall panel as originally

planned. As a result, Performance was forced to begin the development of a new tailgate for the

next longwall panel.

25. As a result of the adverse roof conditions encountered in the longwall

development area, production for the longwall was in jeopardy. The longwall panel being mined

on or about AprilS, 2010, was nearing completion and the next full panel was well short of

readiness for production as desired by MEC, MCS and Performance. As a result, production and

development pressures were placed on the mine managers at the mine and on the miners

themselves.

26. As a result of the production demands, the non production work such as rock

dusting, replacing and repairing the woeful condition of the longwall units water sprays and bits

was not performed even though mine safety laws require such work be conducted upon discovery

of the conditions.

9
 27. On April 5, 2010, shortly after 3 p.m., upon information and belief the unsafely

maintained longwall unit encountered and ignited a pocket of methane gas. What should have

been a brief flash ignition extinguished by the water on the machine or with the consumption of

the small amount of methane gas, was instead converted into a management-made disaster as the

coal dust in the area, which is actually more explosive than methane or natural gas (which

contains mostly methane), and which was known to exist in unsafe quantities throughout the

mine, ignited and exploded with such force that it killed 29 miners in the mine, including

plaintiff s decedent.

28. Analysis of the materials on the ribs, roof and floor of the mine has revealed the

extent of the areas in the mine where impermissible levels of highly explosive and combustible

coal dust existed before the mine explosion and which became the primary fuel and driving force

in the explosion.

COUNT I -
PERFORMANCE COAL DELIBERATE EXPOSURE
-

29. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 28.

30. As the employer of the plaintiffs decedent, defendant Performance Coal had a

legal duty to provide a safe work environment to plaintiff s decedent and other miners employed

at its Upper Big Branch Mine including compliance with all applicable federal, state and mine

industry safety standards.

31. On and before April 5, 2010, defendant Performance Coal exhibited a reckless

indifference to compliance with federal, state and mine industry safety standards as evidenced by

10
its abysmal record of violations issued by state and federal mine safety authorities.

32. On and before AprilS, 2010, defendant Performance Coal violated federal, state

and mine industry rules, regulations and safety standards creating and exposing miners to specific

unsafe working conditions including miners and supervisors were instructed to disregard known

unsafe and dangerous working conditions; miners and supervisors were instructed to omit entries

reflecting hazardous conditions in inspection books; mine supervisors were not fully and properly

inspecting work areas of the mine; the approved mine ventilation plan was not complied with in

the mine; dangerous and explosive levels of coal dust existed; and mine equipment was

maintained and operated in a hazardous manner including missing and inoperable water sprays on

the longwall shear.

33. The actions of defendant Performance Coal on and before AprilS, 2010, as

set forth in paragraph 33 violated West Virginia Code 23-4-2(d)(ii), in that:

(A) Specific unsafe working conditions existed which presented

a high degree of risk and a strong probability of serious

injury or death;

(B) Defendant Performance, by and through its agents and by and through

inspection documents and other mining information, had actual knowledge

of the existence of the specific unsafe working conditions;

(C) The specific unsafe working conditions violated specific

state and federal mine safety statutes, rules or regulations,

and consensus written mine industry safety standards;

(D) That notwithstanding the existence of the facts set forth in

11
 subparagraphs (A) through (C), inclusive, of this paragraph,

Performance nevertheless intentionally thereafter exposed

plaintiffs decedent to the specific unsafe working

conditions; and

(E) Plaintiff s decedent suffered fatal compensable injuries as defined in

section one, article four, chapter twenty-three as a direct and proximate

result of the specific unsafe working conditions.

34. As a direct and proximate result of the illegal and unlawful conduct of defendant

Performance Coal, defendant Performance Coal is liable to plaintiff for damages as set forth in

West Virginia Code S55-7-6.

COUNT II -
MASSEY ENERGY NEGLIGENCE
-

35. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 34.

36. MEC is a Delaware corporation which maintains its corporate headquarters in

Virginia. MEC owns 23 resource groups which include defendant Performance Coal Company.

37. Under West Virginia law, a parent company is legally responsible for injuries and

deaths which occur at its subsidiary when the parent company through its officers, executives,

employees or agents actually exercises control over or is intimately involved in the operation of

the subsidiary's facility.

38. Under West Virginia law, a parent company or an affiliated company is also

12
legally responsible for injuries and deaths which occur at its subsidiary when:

a. the parent or affiliate company voluntarily assumes a duty to perform a

service for the subsidiary;

b. that service is necessary for the protection of third parties, such as

employees of the subsidiary; and,

c. the services are provided in a negligent manner resulting in harm or death

to those third parties.

39. By and through the involvement of CEO and Chairman of the Board Don

Blankenship, defendant MEC indeed exercised control over and/or was intimately involved in the

operation of Performance Coal's Upper Big Branch Mine. MEC CEO and Chairman Don

Blankenship directly communicated with mine management level employees of Performance Coal

by email, telephone, pager and facsimile related to day to day mining activities and had full

authority to direct and at various times directed their activities. For instance, on October 19,

2005, Don Blankenship directly sent a memo to all underground mine superintendents dealing

with a subject as mundane and germane to day to day operation of a mine facility as building of

overcasts and ventilation controls which stated:

If any ofyou have been asked by your group presidents, your

supervisors, engineers or anyone else to do anything other than run

coal (i.e. -
build overcasts, do construction projects, or whatever),

you need to ignore them and run coal. This memo is necessary

because we seem not to understand that coal pays the bills.

This memo clearly shows that Don Blankenship as CEO of parent MEC was intimately involved

13
in and controlled the operation of subsidiary facilities to the point that he could order line level

management at each facility to blatantly disregard and ignore orders issued by their presidents,

supervisors and engineers.

40. Prior to AprilS, 2010, MEC CEO and Chairman Don Blankenship was fully

aware of the abysmal safety record of the Upper Big Branch Mine and had full authority to take

corrective actions from the replacement of management at the mine itself to the closing of the

mine itself.

41. Additionally, in 2007 a shareholder derivative action was commenced against Don

Blankenship and fellow MEC Board members and/or officers Baxter Phillips, Jr., Dan R. Moore,

E. Gordon Gee, Richard M. Gabrys, James B. Crawford, Bobby R. Inman, Robert H. Fogelsong,

Stanley C. Suboleski, Christopher Adkins, Jeffrey M. Jarosinski, and Mark

1. M. Shane Harvey

Clemens. The shareholder derivative suit alleged that these individuals in their roles with MEC

operated the company in such a fashion that continued violations of safety and environmental

rules, regulations and statutes were commonplace, accepted and allowed. As a result of the fines,

publicity and litigation related to these safety and environmental violations, the plaintiffs in the

shareholder derivative suit alleged the value of the MEC stock was diminished and MEC itself

and the shareholders suffered damages as a result of the conduct of the defendants named in that

suit.

42. A settlement agreement was reached in the shareholder derivative suit which

became effective on August 30, 2008. The settlement agreement mandated particular Board-level

involvement, oversight, monitoring and reporting of not just MEC's compliance with

environmental and safety laws, but also the compliance of the subsidiary resource group's

14
compliance with environmental and safety laws.

43. The obligations of the MEC Board and its officers for compliance with mine

safety laws and regulations is spelled out in great detail in the agreement:

A Board level Safety, Environmental and Public Policy Committee

a.

(SEPPC) was to be formed;

b. A Company-wide "Safety Compliance Officer" was to be named and that

person was required to report to the SEPPC;

c.
Safety Compliance Managers for each resource group such as defendant

Performance Coal were to report quarterly directly to the Safety

Compliance Officer on each Resource Group's compliance with worker

and mine safety laws, rules and regulations;

d. The Safety Compliance Officer or a designee was to attend every SEPPC

meeting and report regarding the issues under his/her purview;

e. The SEPPC was to reasonably inform the Board as a whole regarding the

company's compliance with all applicable mine safety laws and regulations

via a mine safety report;

f. The Board was to make a Corporate Social Responsibility report to its

shareholders on an annual basis that was required to include a report on the

Company's worker safety compliance;

g. The SEPPC was to annually review the Company's safety training

programs, recommend enhancements, report to the Board on key objectives

and progress of such programs and consider criteria and measurement

15
 protocols for ensuring all responsible personnel know all compliance

obligations of their work; and,

h. The SEPPC members must make reasonable efforts to attend all annual and

special shareholder meetings and be available to answer questions about

worker and mine safety compliance.

44. The duties and responsibilities voluntarily assumed by defendant MEC by and

through the MEC Board and more specifically by the Board members on the SEPPC involve the

monitoring, oversight and correction of mine safety compliance not just at the parent MEC level,

but specifically and explicitly of the mine safety compliance of the individual Resource Groups

including defendant Performance Coal and its Upper Big Branch Mine.

45. Defendant MEC, by the acts and omissions of its Board members, including Don

Blankenship and members of the SEPPC, negligently, recklessly, carelessly and with wanton

disregard failed to perform in a reasonably prudent manner the duties and responsibilities set forth

in paragraph 44 and voluntarily assumed and directly related to mine law safety compliance in the

operation ofthe Upper Big Branch Mine.

46. Any reasonably prudent Board member signing the shareholder derivative

settlement agreement and!or taking on the duties and responsibilities of a member of the SEPPC,

would have with any reasonable effort and concern been able to discover and then take action

related to the abysmal mine safety compliance record for the Upper Big Branch Mine. The

information was readily available to each and every Board member and especially the members of

the SEPPC.

47. Instead of performing through its Board members and director Don Blankenship

16
the safety compliance and monitoring duties specifically and explicitly set forth in the settlement

agreement, defendant MEC reported instead the illusory statistic of "Non-fatal days lost" or

NFDL. The NFDL only measures days lost from injuries, some of which may occur without any

safety violation (i.e. a strained back from lifting). The NFDL is not a measurement of workplace

safety law compliance.

48. However, even when using the flawed NFDL, the Upper Big Branch Mine's

NFDL was 6.07 for 2008, which was 3.14 times higher than the MEC average. For 2009, the

Upper Big Branch Mine's NFDL was 5.81 or 3.47 times higher than the MEC average.

Therefore, even under the flawed logic of using the NFDL for safety compliance monitoring, the

Upper Big Branch mine was abysmal and even with MEC's organization a clearer safety outlier.

Yet defendant MEC did not replace management, make necessary safety changes at the mine or

close it.

49. To further compound the misleading use of the NFDL as a reasonable prudent

its Resource
manner to monitor mine safety law compliance, evidence now shows that MEC and

Groups manipulated the reporting of injuries to keep the NFDL lower than it was in reality.

Resource group miners report being told to report to work even though injured so that an NFDL

would not have to be reported. Defendant MEC itself has admitted that it under reported NFDL's

as required by law.

50. A powerful motive to manipulate the NFDL for MEC and its Resource Groups

lies in the bonus structure for MEC and its Resource Groups. Resource Group management and

MEC management including Don Blankenship received large bonuses for lowering NFDL rates.

51. Based upon CEO Don Blankenship's intimate involvement in the activities at the

17
Upper Big Branch Mine, Don Blankenship should have reported the abysmal safety compliance

issues at Upper Big Branch to the Board, or at a minimum to the SEPPC. Likewise, he should

have exercised his considerable power over the Resource Groups and either closed the mine or

replaced the mine management under whose watch the multitude of safety violations had mounted

or made sweeping safety changes at the mine.

52. On April 5, 2010, the specific unsafe working conditions set forth in paragraph 33

existed in the Upper Big Branch Mine because MEC management had negligently, recklessly and

with wanton disregard for worker safety failed to take corrective measures related to the poor

safety performance at the Upper Big Branch Mine and/or because MEC management had

negligently, recklessly and with wanton disregard for worker safety fostered and promulgated a

company-wide disregard of mine safety compliance. As a direct and proximate result of

defendant MEC' s negligence, carelessness and wanton disregard for worker safety, a catastrophic

explosion tore through the Upper Big Branch Mine on April 5, 2010, injuring and killing

plaintiff's decedent and 28 other miners.

53. As a direct and proximate result of defendant MEC's involvement in the unsafe

operations of its subsidiary's facility by and through its agents, including CEO Don Blankenship,

defendant MEC is liable to plaintiff for damages as set forth in West Virginia Code ~55-7-6.

54. As a direct and proximate result of the grossly negligent and reckless failure of

defendant MEC's Board and SEPPC to perform in any reasonably prudent manner the mine safety

compliance and monitoring duties voluntarily assumed in the written shareholder suit settlement

agreement, defendant MEC is liable to plaintiff for damages as set forth in West Virginia Code

~55-7-6.

18
 COUNT III MASSEY COAL SERVICES
-

55. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 54.

56. Defendant MC8 is a subsidiary of defendant MEC and is charged with providing

mine safety and engineering services to MEC Resource Groups including Performance Coal and

its Upper Big Branch Mine.

57. Prior to April 5, 2010, defendant MC8 provided safety and engineering services to

Performance Coal and in particular to its Upper Big Branch Mine.

58. As part of its duties and responsibilities, defendant MC8 oversaw the

development, promulgation, implementation and monitoring of the Massey comprehensive 8-1

safety program. All MEC Resource Groups and their mines are required to implement and

comply with the 8-1 program. Defendant MC8 is required to monitor each mine's compliance

with the S-l program and that duty includes the right to conduct S-l compliance audits.

Defendant MCS has the authority to designate a mine as 8-1 compliant or as non-compliant

setting forth the 8-1 deficiencies and corrective measures needed to be taken by the mine's

management.

59. Defendant MCS likewise had the authority to conduct and conducted Safety

Development Group (SDG) meetings which were to include safety and/or management members

of each Resource Group to discuss their mine safety law compliance and to seek out and exchange

information on measures to improve mine safety law compliance.

60. On and before April 5, 2010, agents and management of defendant MCS in the

exercise ofMCS's safety services duties either were aware of the abysmal mine safety law record

19
at the Upper Big Branch Mine and its failure to meet S-1 guidelines and negligently failed to take

corrective actions or agents and management of defendant MCS were inexcusably negligent in the

performance of those safety services duties to the point that MCS could be unaware of the

abysmal safety record of a mine for which it had directly assigned duties of monitoring safety

compliance.

61. On AprilS, 2010, the specific unsafe working conditions set forth in paragraph 33

existed in the Upper Big Branch Mine because MCS agents and employees had negligently,

recklessly and with wanton disregard for worker safety failed to monitor the Upper Big Branch

Mine's safety compliance and take corrective measures in a reasonably prudent manner and/or

because MCS employees and agents had negligently, recklessly and with wanton disregard for

worker safety fostered and promulgated a company-wide disregard of mine safety compliance. As

a direct and proximate result of defendant MCS's negligence, carelessness and wanton disregard

for worker safety, a horrific explosion tore through the Upper Big Branch Mine on April 5, 2010,

injuring and killing plaintiffs decedent and 28 other miners.

62. As a direct and proximate result of the utter failure of defendant MCS to perform

in any reasonably prudent manner the mine safety compliance and monitoring duties assumed at

the direction of its parent company, defendant MCS is liable to plaintiff for damages as set forth

in West Virginia Code ~55-7-6.

COUNT IV SPOLIATION OF EVIDENCE

-

63. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 62.

20
 64. Shortly after the Upper Big Branch Mine explosion at approximately 3:02
p.m. on

April 5, 2010, and in direct violation of state and federal mine law, employees and agents of

defendants MEC and Performance Coal, Christopher Blanchard and Jason Whitehead, entered the

Upper Big Branch Mine.

65. Responding agents of MSHA and the WVOMHSTwere unaware when arriving at

the mine that these individuals were in the mine and without any member of mine agencies with

them.

66. Not until approximately 7:30 p.m. did MSHA officials become aware that these

individuals were in the mine and unescorted. At that time, MSHA officials ordered Blanchard

and Whitehead from the mine.

67. Based upon evidence of discarded Self Contained Self Rescuer devices (SCSR's)

and footprints found by MSHA and the WVOMHST in their investigation, Blanchard and

Whitehead traveled to such deep areas of the mine that they were at or in close proximity to the

longwall section which has now been designated by both the regulatory agencies and defendants

as the ignition site and where vast amounts of critical evidence were located.

68. F or over four and half hours critical evidence, including the ignition site itself and

face mining equipment, were in the exclusive control of agents of the defendants in clear violation

of the law. Additionally, due to the illegal actions of Hughie Elbert Stover and others at

Performance Coal, critical evidence related to knowledge by defendant of the unsafe working

conditions by way of citations and violations were destroyed or lost when these illegal actions

which have led to the indictment, caused federal and state inspectors to inspect mine areas not in

the usual and customary conditions.

21
 69. The actions and conduct of the defendants' agents and employees may cause

critical evidence necessary for the plaintiff to prove and prevail in her case to be compromised and

subject to adverse jury consideration and may ultimately result in the inability of plaintiff to

prevail in her cause against the defendants before a

jury.

70. The defendants' agents and employees violated a clear statutory duty with

their presence at the explosion site and the out by areas which suffered damage in the explosion.

71. As a direct and proximate result of the illegal actions of the defendants' agents,

spoliation of plaintiff s case may have occurred and should the plaintiff not prevail in her

underlying cause, plaintiff alleges she is entitled to recover in her spoliation claim the full

measure of damages she would have recovered as allowed under West Virginia Code S55-7-6.

72. Alternatively, plaintiff requests that the Court at the appropriate time provide the

jury in this matter an adverse inference instruction informing them that the evidence was altered

or compromised and as such they may infer that the evidence would not in its initial state have

been favorable to the defendants.

COUNT V NEGLIGENT AND INTENTIONAL

-

INFLICTION OF EMOTIONAL DISTRESS

73. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 72.

74. Despite the presence of Christopher Blanchard and Jason Whitehead in the mine

for over four and half hours and despite their first hand knowledge that the explosion had killed

all the miners underground, defendants Performance Coal, MEC and MCS nevertheless did not

fully inform the appropriate regulatory agency representatives nor did they inform the families as

22
they kept vigil on the mine site. Instead, the families and indeed the nation were allowed to site

through several days of vigil without being given information known to the defendants related to

the fate of their loved ones. Several months later, it was revealed as part of the MSHA and

WVOMHST investigation the full extent of the areas of the mine in which Blanchard and

Whitehead traveled that day.

75. Upon learning of the actions and conduct of Blanchard and Whitehead on the day

of the explosion and upon learning that management officials with the defendants withheld this

important information from the families, including the plaintiff, the plaintiff was caused to suffer

great emotional distress and anger.

76. Any reasonable, rational and prudent person or entity would foresee that the

withholding and mishandling of such important information to families holding such a vigil

would cause them great emotional distress and anger upon learning that the information was

withheld and that they were allowed to go on for days thinking their loved-ones, including

plaintiff s decedent had somehow survived the explosion. All the while, these agents and

managers of defendants had seen the extend of the devastation and had seen the victims had not

survived.

77. The conduct of these Defendants was extreme, outrageous, beyond the bounds of

decency, atrocious and intolerable such that it was substantially certain that emotional distress

would result from such conduct. Said emotional distress was beyond that which any reasonable

person should be expected to endure.

78. As a direct and proximate result of the conduct of these Defendants, as alleged

herein and as will be further developed in discovery, Plaintiff received false and misleading

23
information, including but not limited to the status of Adam Morgan and whether Adam Morgan

was still alive, and as a direct and proximate result thereof, suffered, and will continue to suffer in

the future, severe emotional and mental distress, trauma and

harm, medical expenses, annoyance,

aggravation, and inconvenience and economic loss.

COUNT VI PUNITIVE DAMAGES

-

79. Plaintiff incorporates by reference the facts and allegations set forth in paragraphs

1 through 78.

80. The acts and omissions forming the basis of Counts II, III, and IV of this

Complaint were of such an extreme, willful, wanton, and reckless nature, and showed such gross

indifference to human life as to warrant punitive damages.

81. Punitive damages are justified to punish the defendants for their wanton acts which

result in the death of 29 miners, including plaintiff s decedent. These defendants by their

knowing continued operation of this rogue Upper Big Branch Mine before the explosion and by

their continued denial of responsibility for any cause of the explosion despite their knowledge of

their conduct before the explosion, the mine inspection records and the findings of the

investigation to date reflect the need for a punitive damage award to deter these defendants from

further operation of mines in this fashion. Punitive Damages will serve to deter the defendants

from continuing to defy state and federal mining safety regulations in their pursuit to profits, and

placing financial considerations ahead of basic minimal regard for human life, safety and dignity.

WHEREFORE, the plaintiff demands judgment against the defendants, jointly and

severally, for:

24
 a) compensatory damages in such an amount allowed under the law for plaintiffs

claims;

b) costs and attorney fees expended in prosecution of this matter;

c) pre-judgment and post-judgment interest as provided under the law; and

d) any and all other relief to which the Court deems plaintiff is entitled.

PLAINTIFFS DEMAND A TRIAL BY JURY.

TAMMY MORGAN, Individually

and as Administratrix of the Estate
of Adam K. Morgan,

Timothy ai (WVSB# 5839)

Guy R. Bucci (WVSB #0521)
L. Lee Javins (WVSB #6613)
D. Blake Carter, Jr. (WVSB # 9970)
1. Ryan Stewart (WVSB #10796)
BUCCI BAILEY & JA vms L.C.
Post Office Box 3712
Charleston, West Virginia 25337
(304)345-0346

25