United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 53] AND DENYING
PLAINTIFF'S MOTIONS TO STRIKE [DKT. NOS. 55;
M. KEELEY UNITED STATES DISTRICT JUDGE.
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).
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
October 1, 2011, Baker Hughes, which provides oil and gas
extraction services, hired Walton to work as an equipment
operator (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. 53-3 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).
The Task of 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. Other employees testified
that they had been shown how to remove suction caps at the
start of their employment, and stillothers testified that
training was “learn as you go” (Dkt. No. 56-8 at
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).
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, the particular aspects of the unapproved eye-bolt
method varied from employee to employee.
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
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).
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” (Dkt. No. 53-8 at 5) - 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).
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.
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 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). Although he was quickly transported to the
hospital following his injury, Walton ultimately lost the use
of his right eye.
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; 56-1 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. Moreover, Walton's supervisor had not
conducted a JSA for the task in question (Dkt. No. 53-14 at
28, 2016, Walton sued Baker Hughes under West Virginia's
deliberate intent statute, W.Va. Code § 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.
Motions to Strike
one week after Baker Hughes filed its motion for summary
judgment, it filed a supporting affidavit of safety
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).
Motion to Strike Response Brief
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).
Civ. P. 6(b) gives the Court discretion to extend a deadline
after its passage upon a showing of “excusable
neglect.” The Court thus construes Baker Hughes's
argument as a motion to permit its late filing based on
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 ...