Fourth Circuit judges recently asked the West Virginia Supreme Court of Appeals to decide whether federal inspectors are liable for the death of two Aracoma miners.
However, this is not the first time a court has taken up this issue.
The negligence and wrongful death suit was filed in April 28, 2010, by Delorice Bragg on behalf of her deceased husband, Don Israel Bragg, and Freda Hatfield on behalf of the estate of Ellery Hatfield against the United States.
Bragg and Hatfield asserted the Mine Safety and Health Administration was negligent in its safety inspection of the Aracoma Coal Co.'s Alma Mine. That negligence, they allege, resulted in the death of the two mine roof bolters.
According to the 4th Circuit's July 17 unpublished per curiam opinion, the federal court dismissed the suit because of the determination that West Virginia law would not hold a private analogue to the MSHA inspectors liable for negligence.
Fourth Circuit judges certified the question to the West Virginia Supreme Court of "whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from the private party's negligent inspection."
Jonathan Ellis, a Charleston Steptoe & Johnson attorney, said other courts have taken up similar cases, pointing out footnotes in the 4th Circuit's decision. In many of these cases, Ellis says, this type of lawsuit has been struck down.
As an example, Ellis said the 11th Circuit decided people could not hold Federal Aviation Administration liable inspectors if they did not catch something before an airplane crash.
Ellis said the 2nd Circuit similarly decided people could not hold U.S. Department of Agriculture inspectors liable for inspections if there was an E. coli breakout down the road.
"It's atypical for the 4th Circuit to do that— saying, ‘We don't know what the West Virginia Supreme Court could do.' It would be guesswork even though all other places have said it's not a viable course of action," he said.
Ellis says if the state Supreme Court were to decide the lawsuit was viable, then people would be able to sue MSHA for an inspection.
"I could see them being a party in cases where you see a mine operator sued for an accident. I could see MSHA also included as a defendant in that lawsuit," he said.
"I think it would be fair to say that if you could sue MSHA because a bad inspection, by comparison, you could sue these other federal agencies in a different context," he added.
Ellis says the state Supreme Court also could side with other circuits saying widows could not bring the cause of action against MSHA.
"We'll have to see what the West Virginia Supreme Court does."
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