Walton v. Baker Hughes Oilfield Operations, Inc.

Filing 92

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 53 AND DENYING PLAINTIFF'S MOTIONS TO STRIKE 55 ; 59 . Signed by Senior Judge Irene M. Keeley on 11/9/2017. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLINTON WALTON,
Plaintiff,
v.

CIVIL ACTION NO. 1:16CV141
(Judge Keeley)

BAKER HUGHES OILFIELD
OPERATIONS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
The plaintiff, Clinton Walton (“Walton”), suffered a serious
eye injury on July 1, 2014, while performing routine equipment
maintenance at the direction of his employer, the defendant Baker
Hughes Oil Field Operations, Inc. (“Baker Hughes”). For the reasons
that follow, the Court

DENIES

three pending motions in this

deliberate intention case, including the defendant’s motion for
summary judgment (Dkt. Nos. 53; 55; 59).
I. BACKGROUND
A.

Factual Background
As this is a dispositive motion filed by the defendant, Baker

Hughes, the Court reviews the evidence in the light most favorable
to Walton, the non-moving party. See Providence Square Assocs.,
L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).
On October 1, 2011, Baker Hughes, which provides oil and gas
extraction services, hired Walton to work as an equipment operator

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
(Dkt. No. 1 at 1-2). Walton’s responsibilities included operating
equipment that Baker Hughes used to pump water and sand into oil
and gas wells. On occasion, the pressure pumping equipment would
become “jacked” and cease to function properly. When this occurred,
Walton

and

other

operators

were

tasked

with

rebuilding

the

offending pump, which included the removal of several “discharge
valve caps,” otherwise referred to as “suction caps” (Dkt. Nos. 533 at 4-6; 53-4 at 4; 53-14 at 2). The caps are recessed in
approximately 8-inch openings on top of the pumps (Dkt. No. 53-14
at 3).
1.

The Task of Removal

Removal of the suction caps was a relatively routine task, one
Walton had performed at least 100 times between 2011 and 2014 (Dkt.
No. 53-3 at 6). Nonetheless, Walton testified that he had never
received any formal training about how to perform the task, but
rather learned on the job how to remove the discharge caps. Id. at
8.1 Other employees testified that they had been shown how to
remove suction caps at the start of their employment, and still
1

It is undisputed that, during the course of Walton’s
employment, he did receive documented training in various other
areas, including personal protective equipment, stop work
awareness, pressure pumping equipment, hand tool safety awareness,
and hazard identification awareness (Dkt. No. 53-16).
2

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
others testified that training was “learn as you go” (Dkt. No. 56-8
at 2).
The method by which Baker Hughes trained its employees to
remove suction caps - which some employees referred to as the
correct, accepted, or approved method - involved the use of a slide
hammer (Dkt. Nos. 53-5 at 4; 53-6 at 5-6; 53-7 at 6; 53-8 at 7, 14;
53-9 at 5). Slide hammers are tools that thread into the caps
themselves, and as the name implies, employees use them to apply an
upward force by sliding a weight up a “big metal dowel rod” into a
fixed plate (Dkt. No. 53-3 at 7; 56-10 at 2).
At times, the threading of the slide hammer or suction cap
would become damaged to such an extent that the tool would not
function properly (Dkt. No. 56-3 at 2-3). Whenever a slide hammer
was ineffective, employees would temporarily use an alternate,
unapproved method of removal until a properly functioning slide
hammer became available (Dkt. No. 53-4 at 9). This alternate method
generally involved threading a large eye bolt into the suction cap,
placing the end of a bar through the eye bolt, and using the bar to
apply leverage to the suction cap (the so-called “eye-bolt method”)
(Dkt. No. 53-5 at 8). Aside from these common elements, however,

3

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
the particular aspects of the unapproved eye-bolt method varied
from employee to employee.
There were, for example, several different bars that could be
used, a “packing nut bar” being approximately two feet long, and a
“line bar,” which was between three and four feet long (Dkt. Nos.
53-6 at 12; 53-4 at 7; 53-8 at 15). Although Walton’s coworkers
differed about the frequency with which they used the short and
long bars, they agreed they had seen supervisors using both of them
(Dkt. Nos. 53-4 at 8; 53-5 at 10; 53-6 at 9; 53-13 at 4; 56-5 at
2).
It is undisputed that, while utilizing the eye-bolt method,
operators occasionally would tap the eye bolt with a sledge hammer
“trying to break that seal and cock the suction cap sideways so it
[would] pop up out” (Dkt. No. 53-6 at 7, 11). Employees, however,
differed as to whether one should ever strike the bar itself,
rather than the eye bolt (Dkt. Nos. 53-5 at 8; 53-13 at 7; 56-4 at
2; 56-8 at 2).
Although Baker Hughes never instructed equipment operators to
utilize the eye-bolt method (Dkt. Nos. 53-5 at 12; 53-7 at 8) - and
one employee described it as “a shortcut we’re not supposed to use”

4

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
(Dkt. No. 53-8 at 5)2 - use of the method was commonplace (Dkt. No.
56-10 at 2; 53-15 at 5). Walton and another employee testified that
managers or supervisors were aware of this practice and even had
used the method themselves (Dkt. Nos. 53-8 at 6; 56-9 at 2).
2.

Walton’s Injury

On July 1, 2014, the date of his injury, Walton was assigned
to work on the Baker Hughes Hess Archer site in Cadiz, Ohio. There
he participated in a “pre-job safety and operations meeting” at
which field supervisor James Dotson ensured that all employees had
their personal protective equipment (“PPE”) (Dkt. Nos. 53-12 at 3;
53-21). That day’s job safety analysis (“JSA”) worksheet also
indicates that the crew discussed safe practice when using a hammer
(Dkt. No. 53-22 at 3). Neither the meeting nor the JSA specifically
addressed rebuilding fluid end pumps or removing discharge caps.
Nevertheless, during the shift, Walton’s supervisor directed
him to rebuild a fluid end pump (Dkt. No. 1 at 2). While working on
the pump, Walton attempted to remove one particular discharge cap
2

Indeed, Baker Hughes management employee James Paugh
testified that the alternate method should not have been used. If
an employee could not remove a suction cap with a slide hammer, a
mechanic, rather than the equipment operator himself, should
address the issue (Dkt. No. 53-11 at 5). Management employee
Anthony Jones also testified that employees were trained to stop
working if a slide hammer became inoperable (Dkt. No. 53-9 at 5).
5

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
using the slide hammer that was on-site (Dkt. No. 53-3 at 9). When
the slide hammer method failed, however, Walton resorted to a
version of the eye-bolt method. Placing an eye bolt into the
suction cap, he slid a short bar through the eye bolt and attempted
to strike the bar with a sledge hammer. Instead, the sledge hammer
struck another bar laying nearby, which in turn struck Walton in
the right eye (Dkt. No. 53-3 at 10-14).3 Although he was quickly
transported to the hospital following his injury, Walton ultimately
lost the use of his right eye.
Baker Hughes immediately shut down the Hess Archer site for
several days to investigate Walton’s injury (Dkt. No. 53-4 at 6).
It ultimately concluded that Walton had used the wrong tool, in
part because he had incorrectly assumed that the “commonly used”
eye-bolt method was an accepted practice (Dkt. Nos. 53-14 at 4; 561 at 3). As a result, Baker Hughes determined that Walton had not
followed the standard operating procedure (“SOP”) for suction cap
removal, and that the procedure was not clear to employees.4
3

Walton initially reported that the bar he was using slid out
of the eye bolt and struck him (Dkt. No. 56-6 at 1). Indeed, Baker
Hughes held a safety meeting with employees where it so described
the mechanism of Walton’s injury (Dkt. No. 53-8 at 9).
4

In June 2014, Baker Hughes implemented a revised SOP
regarding suction cap removal, which included the use of a new tool
6

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
Moreover, Walton’s supervisor had not conducted a JSA for the task
in question (Dkt. No. 53-14 at 4).
B.

Procedural Background
On

June

Virginia’s

28,

2016,

deliberate

Walton

intent

sued

Baker

statute,

W.

Hughes
Va.

under

Code

§

West
23-4-

(d)(2)(ii). He alleged that Baker Hughes had failed to train him on
or provide him with the proper equipment, thereby resulting in his
use of an unapproved, alternate method of discharge cap removal,
which resulted in his injury (Dkt. No. 1). Pending before the Court
is Baker Hughes’s motion for summary judgment on Walton’s sole
claim for recovery pursuant to W. Va. Code § 23-4-2(d)(2)(ii)
(2014). Also pending are two related motions to strike filed by
Walton.
II. DISCUSSION
A.

Motions to Strike
Approximately one week after Baker Hughes filed its motion for

summary

judgment,

it

filed

a

supporting

affidavit

of

safety

called a “cover removal tool” or “cap puller” (Dkt. No. 53-9 at 45). The revised SOP had not been reviewed with Walton prior to his
injury, but even had Walton been provided the revised SOP, the cap
pullers were on backorder and unavailable until September 2014
(Dkt. No. 53-20). The use of slide hammers remains an accepted
method of removing discharge caps (Dkt. No. 53-10 at 5-6).
7

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
specialist Michael Kuhn (“Kuhn”), which it apparently had failed to
procure before Kuhn left on vacation (Dkt. No. 53-1 at 4 n.2).
Walton

moved

to

strike

this

affidavit

based

on

purported

inconsistencies between it and Kuhn’s deposition testimony (Dkt.
No. 55). When Baker Hughes responded to Walton’s motion outside the
14-day period provided by the rules (Dkt. No. 58), Walton moved to
strike the untimely response brief (Dkt. No. 59).
1.

Motion to Strike Response Brief

Although Walton recognizes “that only one day passed after the
filing deadline,” he argues that Baker Hughes cannot provide a
sufficient reason to justify its late filing. Id. at 4-7. In
response, Baker Hughes concedes that it “was one day late because
it was simultaneously working on” summary judgment briefing. It
nonetheless argues that Walton will not be prejudiced by the late
filing, and asks the Court to allow the submission of its response
brief (Dkt. No. 63 at 2-3). In his reply, Walton insists that Baker
Hughes’s busy schedule is an insufficient basis to justify any
extension (Dkt. No. 64 at 2).
Fed. R. Civ. P. 6(b) gives the Court discretion to extend a
deadline after its passage upon a showing of “excusable neglect.”

8

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
The Court thus construes Baker Hughes’s argument as a motion to
permit its late filing based on excusable neglect.
Under the law of the United States Court of Appeals of
the Fourth Circuit, “ ‘[e]xcusable neglect’ is not easily
demonstrated, nor was it intended to be . . . ‘the burden
of demonstrating excusability lies with the party seeking
the extension and a mere concession of palpable oversight
or administrative failure generally has been held to fall
short of the necessary showing . . .’” Thompson v. E.I.
DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir.1995)
(quoting In re O.P.M. Leasing Serv., Inc., 769 F.2d 911,
917 (2d Cir. 1985)). . . .
. . .
. . . The elements for consideration are: (1) “the danger
of prejudice to [the non-moving party],” (2) “the length
of the delay and its potential impact on judicial
proceedings,” (3) “the reason for the delay, including
whether it was in the reasonable control of the movant,
and” (4) “whether the movant acted in good faith.”
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
Quite obviously, the most important of these factors in
deciding whether the “neglect” was “excusable” is the
proffered reason for it. Thompson, 76 F.3d at 534.
Anderson v. Spencer, No. 5:09CV117, 2011 WL 6748827, at *2-*3
(N.D.W. Va. Dec. 21, 2011); see also Martinez v. United States, 578
F. App’x 192, 194 n.* (4th Cir. 2014) (unpublished decision).
Baker

Hughes’s

admission

that

it

merely

overlooked

the

deadline weighs against a finding of excusable neglect. Thompson,
76 F.3d at 533 (“[A] mere concession of palpable oversight or

9

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
administrative failure generally has been held to fall short of the
necessary showing.”). Nonetheless, the remaining three factors from
Pioneer favor extending the deadline.
First, although Walton argues that he is prejudiced by the
late-filed response, he provides no basis for this argument other
than the possibility that the Court will heed its contentions (Dkt.
No. 60 at 4-5). Were this alone sufficient, every late-filed brief
would result in prejudice and consideration of the factor would be
futile. Second, the delay of one day is as brief as possible.
Finally, Walton simply does not allege that Baker Hughes acted in
bad faith, and even acknowledges that he “is sympathetic to Baker
Hughes’ busy schedule” that resulted in the late filing (Dkt. No.
64 at 2). Based on this, the Court finds that Baker Hughes has
proffered a reasonable excuse for its late filing and therefore
DENIES Walton’s motion to strike (Dkt. No. 59).
2.

Motion to Strike Kuhn’s Affidavit

Walton also has moved to strike the affidavit of safety
specialist Kuhn, arguing that it is impermissibly inconsistent with
Kuhn’s sworn deposition testimony (Dkt. No. 55).
Although Fed. R. Civ. P. 56(b)(4) allows parties to support
their motions for summary judgment with supporting affidavits, the
10

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
Court may impose appropriate sanctions if such an affidavit “is
submitted in bad faith or solely for delay.” Fed. R. Civ. P. 56(h).
As Walton contends, an affidavit in support of summary judgment may
have been submitted in bad faith if it contradicts the affiant’s
prior sworn testimony. See, e.g., Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 349 (5th Cir. 2007) (citing Modica v. United
States, 518 F.2d 374, 376 (5th Cir. 1975)) (reasoning that direct
conflict between declarations and prior deposition testimony may
indicate bad faith); Fort Hill Builders, Inc. v. Nat’l Grange Mut.
Ins. Co., 866 F.2d 11, 16 (1st Cir. 1989) (citing Barticheck v.
Fidelity Union Bank/First Nat’l State, 680 F. Supp. 144 (D.N.J.
1988); Acrotube, Inc. v. J.K. Fin. Grp., Inc., 653 F. Supp. 470,
478 (N.D. Ga. 1987)). Nonetheless, the Court cannot discern any
egregious inconsistency between Kuhn’s testimony and his affidavit
that warrants a finding of bad faith.
In his deposition, Kuhn agreed with opposing counsel that, in
its investigation of Walton’s injury, Baker Hughes had uncovered
serious safety shortcomings in its workplace. For instance, he
agreed that Baker Hughes had not conducted required risk and job
assessments,

and

further

had

failed

to

provide

work

stands,

adequate space, standard operating procedures, or appropriate tools
11

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
(Dkt. No. 56-1 at 8). Kuhn testified that he understood the
“mechanism of [Walton’s] injury” to have been the pry bar coming
out of the eye bolt and striking him. Id. at 9. But he further
agreed that, “[r]egardless of how [Walton] was hurt - whether he
hits that bar and that bar flies up and hits him; whether he hits
that bar and the hammer bounces back and hits him . . . whether he
hits that bar and there’s extraneous materials laying there and one
of that flies up and hits him,” the findings of his investigation
would have remained unchanged. Id.5
Kuhn’s affidavit clarifies that, during the investigation, he
“understood Mr. Walton’s injury was the result of him striking the
pry bar he placed into the eye bolt and that particular pry bar
dislodging and striking Mr. Walton in the face” (Dkt. No. 54 at 1).
“[T]he investigation and subsequent reports were based upon” this
understanding of the accident, rather than the fact that Walton
“was injured as a result of a second pry bar being struck by him.”
Id. at 2. Indeed, a review of the Baker Hughes “incident review”
and

related

corporate

documents

5

makes

clear

the

company’s

Although Baker Hughes points out that it objected to the
form in which Walton’s counsel posed these questions (Dkt. No. 58
at 4), it has not argued that the facts “cannot be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P.
56(c)(2).
12

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
impression that “the bar came out of the eye bolt and into
[Walton’s] eye” (Dkt. Nos. 53-14 at 2; 53-20; 56-6).
Walton
defendant

objects

of

that

liability”

Kuhn’s
by

affidavit

clarifying

that

“attempts
the

Baker

to

rid

Hughes

investigation and reports were premised on a “misunderstanding” of
how Walton’s injury occurred (Dkt. No. 55 at 2). In reality,
however, Kuhn’s affidavit does not disclaim any of his prior
testimony or call into question his admission that the mechanism of
injury would have no effect on the findings in Baker Hughes’s
report. Rather, it merely reinforces what is already clear from
Kuhn’s deposition and the defendant’s documentation, that is, until
contrary information surfaced during Walton’s deposition, Baker
Hughes was unaware that an “extraneous” bar was to blame for
Walton’s injuries. Therefore, because this clarification is not an
inconsistency submitted in bad faith, the Court DENIES Walton’s
motion to strike Kuhn’s affidavit (Dkt. No. 55).
B.

Motion for Summary Judgment
1.

Standard of Review

Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate

where

the

stored

information,

.

,

.
13

.

admissions,

“depositions,
affidavits

or

interrogatory

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square, 211 F.3d at 850. The Court must avoid weighing
the evidence or determining its truth and limit its inquiry solely
to a determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

reasonably find for the nonmoving party. Id. at 248–52.

14

could

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
2.

Applicable Law

The West Virginia Worker’s Compensation Act typically provides
employers with immunity from suit when an employee is injured on
the job. W. Va. Code § 23-4-2(d)(1) (2014). The employer can lose
that immunity, however, if an employee proves that the employer
acted with “deliberate intention.” Id. § 23-4-2(d)(2). At the time
of Walton’s injury, see McComas v. ACF Industries, LLC, 750 S.E.2d
235, 238 & n.4 (W. Va. 2013), the controlling statute provided that
a plaintiff could establish “deliberate intention” by proving:
(A) That a specific unsafe working condition existed in
the workplace which presented a high degree of risk and
a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by the
specific unsafe working condition;
(C) That the specific unsafe working condition was a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly
accepted and well-known safety standard within the
industry or business of the employer, as demonstrated by
competent evidence of written standards or guidelines
which reflect a consensus safety standard in the industry
or business, which statute, rule, regulation or standard
was specifically applicable to the particular work and
working condition involved, as contrasted with a statute,
rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;

15

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C), inclusive, of
this paragraph, the employer nevertheless intentionally
thereafter exposed an employee to the specific unsafe
working condition; and
(E) That the employee exposed suffered serious
compensable injury or compensable death as defined in
section one, article four, chapter twenty-three whether
a claim for benefits under this chapter is filed or not
as a direct and proximate result of the specific unsafe
working condition.
W. Va. Code § 23-4-2(d)(2)(ii)(A)-(E) (2014).6 To survive a motion
for summary judgment, the plaintiff “must offer evidence to prove
each of the five specific statutory requirements.” McComas, 750
S.E.2d at 240 (quoting Syl. Pt. 2, Helmick v. Potomac Edison Co.,
406 S.E.2d 700 (W. Va. 1991)).
3.

Legal Analysis

Baker Hughes argues that it is entitled to summary judgment
because Walton cannot establish the requirements of subparagraphs
(B) and (C) of W. Va. Code § 23-4-2(d)(2)(ii) (Dkt. No. 53-1).
After

careful

review,

the

Court

6

concludes

that

Walton

has

Deliberate intention may also be established by proof that
an employer “acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee,” W. Va. Code § 23-4-2(d)(2)(i)
(2014), but Walton did not plead this theory of liability.
16

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
established the existence of disputed material facts sufficient to
avoid summary judgment.
a.

Unsafe Working Condition

The foundation of Walton’s deliberate intent claim is the
existence of “a specific unsafe working condition . . . which
presented a high degree of risk and a strong probability of serious
injury

or

death.”

W.

Va.

Code

§

23-4-2(d)(2)(ii)(A)

(2014).

Although Baker Hughes does not appear to contest that such a
condition existed on the Hess Archer site, the Court must “identify
the

specific

challenged

unsafe

working

elements.

Bevins

condition”

before

v.

Coal

Apogee

analyzing
Co.,

LLC,

the
No.

2:13cv24264, 2014 WL 7236415, at *3 (S.D.W.Va. Dec. 17, 2014); see
also Deskins v. S.W. Jack Drilling Co., 600 S.E.2d 237, 241 (W. Va.
2004). “[S]ubsection (A) requires more than a showing that an
unsafe working condition could produce an injury. The unsafe
working condition must present a high degree of risk and strong
probability of serious injury or death.” Baisden v. Alpha & Omega
Coal Co., LLC, No. 2:11-079, 2012 WL 259949, *8 (S.D.W.Va. Jan. 27,
2012) (emphases added). Given that Walton bears the burden at this
stage to establish each element, Anderson v. Liberty Lobby, 477
U.S. at 256; McComas, 750 S.E.2d at 240, the Court defers to his
17

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
description of the allegedly unsafe condition. Bevins, 2014 WL
7236415, at *3-*4.
There is, however, one aspect of Walton’s allegations that the
Court will not consider in its analysis. During argument on the
motion for summary judgment, Walton maintained that Baker Hughes
failed to provide him the “appropriate equipment” or “safest” tool
with which to remove the discharge caps. More specifically, he
contended that Baker Hughes should have provided him with the June
2014 revised SOP, as well as the new cap puller tool, which was on
back order at the time (Dkt. Nos. 53-18 at 6; 53-19 at 4).
Walton does not, however, contest that Baker Hughes provided
him with a slide hammer, on which he had received on-the-job
training (“OJT”), and which remained an accepted method of suction
cap removal at the time he was injured. The gravamen of Walton’s
case therefore is not that Baker Hughes failed to provide any safe
tool with which to remove discharge caps, but that he was not
properly trained on what to do when the slide-hammer method became
unavailable.7
7

As discussed during the hearing on the defendant’s motion
for summary judgment on October 31, 2017, it is unclear whether
this theory of the case advances Walton’s cause. Providing one safe
tool rather than another simply cannot support a finding of
deliberate intention.
18

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
This contention aside, Walton’s definition of the allegedly
unsafe working condition remains rather oblique; nevertheless, the
Court has been able to distill two primary contentions from the
record and oral argument. First, Walton contends that Baker Hughes
employees’ widespread use of the unapproved eye-bolt method itself
presented an unsafe working condition (Dkt. No. 56 at 6). To that
end, a Baker Hughes supervisor agreed that engaging in “metal-onmetal striking” presented a risk of injury from “flying particles
or flying debris” (Dkt. No. 56-10 at 2).
Second, and perhaps more on point, Walton’s safety expert
opined that Baker Hughes had created an unsafe working condition by
failing to conduct a JSA and develop appropriate training for the
task in question (Dkt. Nos. 53-18 at 6; 56 at 6-8). Indeed, the
failure to provide training required by regulation or industry
standard can, alone, be an unsafe working condition. See Skaggs v.
Kroger

Co./Kroger

Ltd.

Partnership

I,

788

F.

Supp.

2d

501

(S.D.W.Va. 2011) (citing Arnazzi v. Quad/Graphics, Inc., 621 S.E.2d
705 (2005)). Walton’s safety expert opined that this lack of proper
training “presented a high degree of risk and strong probability of
serious injury or death” (Dkt. No. 53-18 at 6).

19

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
b.

Violation of Regulation or Standard

Baker Hughes argues that each of the regulations and standards
identified by Walton are too general to satisfy subparagraph (C) of
W. Va. Code § 23-4-2(d)(2)(ii) (2014) (Dkt. No. 53-1 at 15). It is
appropriate to address this threshold issue prior to assessing
whether

Baker

Hughes

had

“actual

knowledge”

pursuant

to

subparagraph (B). See McComas, 750 S.E.2d at 240. To satisfy
subparagraph (C), Walton must offer a regulation or safety standard
that “prescribes specifically identified duties, as opposed to
merely expressing a generalized goal of safety.” Ryan, 639 S.E.2d
at 763. He thus must establish “that the specific unsafe working
condition was a violation of a safety regulation or safety standard
specifically

applicable

to

the

particular

work

and

working

conditions involved (as contrasted with a regulation or standard
generally requiring safety in the workplace).” McComas, 750 S.E.2d
at 240 (emphases in original). “For example, a regulation directed
specifically to coal mining could not be used as a basis for
establishing a violation by an employer operating exclusively in
the lumber industry, while a regulation falling under a more
general classification, such as labor, might be applicable to
several different industries.” Ryan, 639 S.E.2d at 764.
20

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
Through his experts, Walton has proffered that Baker Hughes
violated the following regulations and safety standards: 29 C.F.R.
§ 1910.132(d)(1), (d)(2), and (f)(1); 29 C.F.R. § 1910.242(a); and
American National Standards Institute, American Society of Safety
Engineers

(“ANSI/ASSE”)

Z490.1-2009;

and

American

Petroleum

Institute (“API”) Recommended Practice (“RP”) 54 (Dkt. Nos. 53-1 at
11; 56 at 18-23). To analyze these provisions, the Court must
define more particularly the scope of Walton’s alleged unsafe
working

condition.

None

of

the

safety

provisions

Walton

has

asserted has any specific bearing on the method he used to remove
a discharge cap. Therefore, the relevant question with regard to
subparagraph (C) is whether his use of the unapproved eye-bolt
method was due to Baker Hughes’s failure to conduct appropriate
workplace assessments and provide mandated training. Within this
framework, the Court will consider each of the regulations and
standards Walton has identified.
i.

Regulations

Walton’s safety experts cite both 20 C.F.R. § 1910.132 and
§ 1910.242 in support of their opinions, but Baker Hughes contends
each of these regulations is “not specific enough to establish
deliberate intent” (Dkt. No. 53-1 at 15). The Court agrees that
21

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
neither provision satisfies the requirements of subparagraph (C) in
this case.
First, 29 C.F.R. § 1910.132 relates to “General Requirements”
for PPE. Among other things, the regulation requires an employer to
assess the workplace for hazards that require the use of PPE,
verify in a written certification that the evaluation has been
performed, and provide PPE training to affected employees. Id.
§

1910.132(d)(1),

(d)(2),

(f)(1).

Contrary

to

Baker

Hughes’s

argument that this regulation is not specific enough to satisfy
subparagraph (C), West Virginia law expressly holds that § 1910.132
“imposes a specific mandatory duty upon employers in the labor
industry to assess their workplaces for the purpose of identifying
hazards, assessing the need for protective equipment, and, where a
need is identified, requiring employees to use the requisite safety
equipment.” Ryan, 639 S.E.2d at 763.
Nonetheless, it is undisputed that Walton did receive training
on PPE, and that, on July 1, 2014, his shift included a JSA and
pre-job meeting that addressed appropriate PPE for the workplace
and ensured that all personnel were wearing the protective gear
(Dkt. Nos. 53-16; 53-17; 53-21). Critically, Walton has failed to
indicate that Baker Hughes should have required further PPE or that
22

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
“the lack of personal protective equipment played [any] role in the
accident.” Redman v. Federal Grp., Inc., No. 13-0377, 2013 WL
6153158, at *4 (W. Va. 2013) (memorandum decision). Therefore, even
though § 1910.132 is specifically applicable to the work in
question, Walton has not offered any evidence of its violation.8
Next, Walton’s experts point to 29 C.F.R. § 1910.242(a), which
states generally that “[e]ach employer shall be responsible for the
safe condition of tools and equipment used by employees.” On its
face, this regulation only “generally require[s] safe . . .
equipment.” W. Va. Code 29 § 23-4-2(d)(2)(ii)(C) (2014). Therefore,
even assuming that Baker Hughes violated its duty to keep tools and
equipment in a safe condition, that violation cannot satisfy the
specificity required by subparagraph (C). See Bevins, No. 2:13-cv24264, 2014 WL 7236415, at *5-*8 (reasoning that a regulation
requiring correction of unsafe equipment defects did not satisfy
subparagraph (C)).

8

Moreover, although Baker Hughes’s employees testified
generally that Walton’s supervisor violated regulations and
standards by failing to conduct a JSA on fluid end pump maintenance
on the date of Walton’s injury (Dkt. No. 56 at 11-15), Walton has
not actually pointed to a provision other than § 1910.132 that
arguably would require such a specific assessment.
23

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
ii.

Industry Standards

Walton also purports to rely on several industry standards,
including ANSI/ASSE Z490.1-2009 and API RP 54. The parties do not
dispute that these standards are “commonly accepted and well-known
. . . within the industry” in that they are “written standards or
guidelines

which

industry.”

W.

reflect

Va.

Code

a
§

consensus

safety

standard

23-4-2(d)(2)(ii)(C).

Baker

in

the

Hughes,

however, argues that these standards merely establish “the minimum
requirements a training program must include,” and that Walton has
not detailed how Baker Hughes’s training programs fall short (Dkt.
No. 53-1 at 16). Walton, on the other hand, contends that these
standards required Baker Hughes to perform certain assessments and
inspections (Dkt. No. 53-18 at 7; 56 at 18-19).
ANSI/ASSE Z490.1-2009 requires employers to assess the need
for training and to develop training that specifies “[d]elivery
method(s) appropriate to the target audience and stated learning
objectives.”

The

employer

may

use

multiple

delivery

methods,

including OJT, lectures, and discussions. ANSI/ASSE Z490.1-2009
§§ 4.4.1, E4.4.1. Under this standard, OJT “must be properly
documented” with “date, attendees’ names, and training topics.” Id.

24

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
§ C.3a.9 Likewise, API RP 54 addresses safety for oil and gas well
drilling and servicing. With regard to operations, the standard
states that “[p]ersonnel should receive instruction in correct work
methods

to

reduce

chance

of

injury

to

themselves

or

fellow

personnel.” API RP 54 § 6.1.6. The employer should also establish
and maintain a safety program that instructs “crew members on work
procedures and safe practices” and includes meetings “in which the
probable hazards, problems of the job and related safe practices
are emphasized and discussed.” Id. § 6.1.7.
According to Walton’s expert, Baker Hughes could not have
assessed the need for training without at some point conducting a
hazard risk assessment (“HRA”) or JSA regarding the task in
question (Dkt. No. 53-18 at 7). Although Baker Hughes argues that
it conducted a safety meeting and JSA on the date in question,
there is no evidence of whether it assessed the need for training
on fluid end pumps, including suction cap removal, and developed an
appropriate

program

as

required

by

industry

standards.

The

widespread use of the eye-bolt method, on which Baker Hughes never

9

To the extent that Walton claims Baker Hughes violated this
standard by failing to document his OJT properly, the question
remains whether such a violation was the proximate cause of his
injury.
25

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
trained its employees, leads to the reasonable inference that Baker
Hughes never provided such appropriate training. And, as alleged by
Walton, it was such lack of training that led him to use the
unapproved eye-bolt method. As a result, Walton has established
that there are material facts in dispute regarding whether he was
provided with industry-mandated training, including the appropriate
course of action to follow when the accepted slide-hammer method
became unavailable.
c.

Actual Knowledge

Under subparagraph (B), Walton bears the burden of proving
that, “prior to [his] injury,” Baker Hughes “had actual knowledge
of the existence of [a] specific unsafe working condition and of
the high degree of risk and the strong probability of serious
injury

or

death

presented

by

the

specific

unsafe

working

condition.” W. Va. Code § 23-4-2(d)(2)(ii)(B) (2014) (emphasis
added). “This requirement is not satisfied merely by evidence that
the employer reasonably should have known . . . . Instead, it must
be shown that the employer actually possessed such knowledge.” Syl.
Pt. 5, Coleman Estate ex rel. Coleman v. R.M. Logging, Inc., 700
S.E.2d 168 (W. Va. 2010) (quoting Syl. Pt. 3, Blevins v. Beckley
Magnetite, Inc., 408 S.E.2d 385 (W. Va. 1991)).
26

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
Actual knowledge is thus “a high threshold that cannot be
successfully

met

by

speculation

or

conjecture.”

Id.

at

176.

Nonetheless, the standard may be met by circumstantial evidence,
and “evidence of prior similar incidents or complaints is not
mandated.” Skaggs v. Kroger Co./Kroger Ltd. Partnership I, 788 F.
Supp. 2d 501, 507 (S.D.W.Va. 2011) (quoting Syl. Pt. 2, Nutter v.
Owens-Illinois, Inc., 550 S.E.2d 398 (2001)). It is unclear why
Baker Hughes contends that it lacked “actual knowledge,” but Walton
has pointed to abundant evidence in the record that it was aware of
the allegedly unsafe conditions.
Direct evidence is, of course, the simplest method of proving
actual knowledge. In Skaggs, a case relied on by Walton, grocery
store employees were required to use motorized “pallet jacks,”
which had a history of malfunctioning. 788 F. Supp. 2d at 503.
About four months into his employment, the plaintiff was injured
when a pallet jack accelerated toward him and would not brake
properly, thus rolling over his foot and fracturing multiple bones.
Id.

at 503-04. Denying the employer summary judgment in the

plaintiff’s deliberate intent lawsuit, the court reasoned that
testimony

regarding

the

night

supervisor

27

and

store

manager’s

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
knowledge of the pallet jack’s problems established the employer’s
actual knowledge of the unsafe working condition. Id. at 508.
Here, Baker Hughes had actual knowledge of the widespread use
of the “unapproved” eye-bolt method by which Walton attempted to
remove

the

consistently

discharge
testified

cap

in

that

question.
an

Baker

alternate

Hughs

method

of

employees
removing

discharge caps was commonly utilized, and that field supervisors
not

only

were

aware

of

the

practice

but

had

even

used

it

themselves. See supra Part I. Therefore, Walton has established
that, like the employer in Skaggs, “supervisory-level employees” and thus Baker Hughes - had actual knowledge of this aspect of the
allegedly unsafe working condition.10
Further, there is sufficient evidence that Baker Hughes had
knowledge of its alleged failure to provide appropriate training.

10

Baker Hughes attempts to sidestep proof of its actual
knowledge by arguing that it was unaware of the exact manner by
which Walton attempted to remove the suction cap (Dkt. Nos. 53-1 at
10; 57 at 4-5). According to Baker Hughes, hitting the pry bar
forcibly, rather than tapping the eye bolt or hitting the pry bar
lightly, was not a common, alternate means of completing the task
(Dkt. No. 53-1 at 10). Aside from blaming Walton’s injury on “his
lack of common sense when using a hammer” (Dkt. No. 57 at 5), Baker
Hughes has failed to explain why any distinction in the
“unapproved” methods used by its employees excuses its actual
knowledge that these employees were not following approved
protocols.
28

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
The Supreme Court of Appeals of West Virginia addressed a similar
situation in Arnazzi v. Quad/Graphics, Inc., where an employer
assigned the inexperienced plaintiff to work as a forklift operator
on the first day of his employment. In doing so, the employer acted
contrary

to

an

Occupational

Health

and

Safety

Administration

(“OSHA”) regulation that required specific training in numerous
areas of forklift operation prior to certification of an employee
for the task. 621 S.E.2d at 706 n.2. Despite having knowledge of
this requirement, the employer did not appropriately train any of
its forklift operators. The court observed that this failure to
provide “legally-mandated training” amounted to an unsafe working
condition. Id. at 706; see also Skaggs, 788 F. Supp. 2d at 506-07
(reasoning that employer created an unsafe working condition by
failing to provide mandatory training on operating pallet jacks).
Here, Walton’s safety expert has opined that, in order to
develop

and

provide

appropriate

training

as

contemplated

by

industry standards, it would be “critical” for Baker Hughes to
perform an HRA and JSA regarding suction cap removal (Dkt. No. 5318 at 7). As discussed, there is no evidence in the record that
Baker Hughes ever conducted such an assessment. Indeed, there is no
evidence that Baker Hughes ever trained Walton how to remove
29

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
discharge caps other than the OJT Walton may have received from his
coworkers (Dkt. No. 53-3 at 8-9). Walton has thus established a
dispute of material fact regarding whether he was appropriately
trained, and whether such training would have prevented him from
attempting to remove the discharge caps in the manner that led to
his serious injury.11
III. CONCLUSION
For the reasons discussed, the Court:
1)

DENIES Baker Hughes’s Motion for Summary Judgment (Dkt.
No. 53);

2)

DENIES Walton’s Motion to Strike the Affidavit of Michael
Kuhn from Defendant’s Motion for Summary Judgment (Dkt.
No. 55); and

3)

DENIES Walton’s Motion to Strike the Defendant’s Response
in Opposition (Dkt. No. 59).

It is so ORDERED.

11

The record is not sufficiently developed regarding whether
the allegedly unsafe conditions “presented a high degree of risk
and strong probability of serious injury or death,” and Baker
Hughes did not specifically address the issue in its motion.
Therefore, the Court cannot determine what actual knowledge Baker
Hughes had of any risk associated with the allegedly unsafe
conditions.
30

WALTON V. BAKER HUGHES

1:16CV141

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF’S MOTIONS TO STRIKE [DKT. NOS. 55; 59]
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED: November 9, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

31