More than six years after her son’s death at a hotel construction site, Debi Koehler-Fergen still hopes for justice.
Her hope stems from a ruling Friday in a lawsuit that aims to hold Boyd Gaming Corp. responsible for the death of two maintenance workers in 2007. The lawsuit is moving forward despite the company’s latest attempt to have the case dismissed.
Clark County District Judge Gloria Sturman denied Boyd’s motion for summary judgment, noting several times the facts of the case were egregious and compelling.
For Koehler-Fergen, it was a milestone in what has been a long crusade. Her son, Travis Koehler, died Feb. 2, 2007, at the Boyd-owned Orleans after entering a toxic manhole to rescue a co-worker, Richard Luzier, who’d gone into the hole to fix a pipe. Koehler lost consciousness shortly after entering the manhole. A third employee, David Snow, also attempted a rescue.
Koehler and Luzier died and Snow was in a coma for approximately 23 days as a result of the incident.
Luzier’s sons also are plaintiffs in the case, which was filed in 2008.
Boyd attempted to have the case dismissed in 2009 by arguing the plaintiffs failed to meet a standard set by a 2000 Nevada Supreme Court decision (Conway vs. Circus Circus) that requires a “deliberate and specific intent to injure” burden of proof in workplace-injury lawsuits.
Boyd took the case to the Supreme Court in 2009 after a judge allowed the plaintiffs to amend their complaint to address the high standard. The high court rebuffed that challenge.
Parsing out intent is tricky and will now be up to a jury to decide.
Sturman noted no one was asserting anyone wanted the workers to die. The question before the court, the judge said, is whether two supervisors, also named in the suit, intended the workers to take an action that exposed them to a knowingly dangerous situation.
Friday’s hearing previewed some of what is poised to be an emotional trial.
Attorney George Bochanis, who represents Koehler-Fergen and her former husband, Robert Koehler Jr., said he thought the case represented the most compelling workplace safety litigation in Nevada history. He noted his only regret was not filing a counter-motion for summary judgment, since he believes his clients’ evidence is so gripping.
Among the evidence will be testimony from Snow, who alleges that supervisors screamed at Travis Koehler, and then at him, to go into the hole after Luzier went down.
“They side-stepped tons of safety protocols, tons of safety issues just to get a job done. And what did that do? It didn’t do any job. All it did was kill my friends. That was it,” Snow said in a deposition.
The plaintiffs allege that prior to the 2007 incident, supervisors called an outside company that used hazardous materials suits, respirators and safety harnesses for confined-space work.
The case also is expected to include testimony from former Boyd Gaming environmental health and safety manager Don Barker. In a deposition, Barker chastised Boyd for what he characterized as a stingy approach to safety. Barker said he warned the supervisors about confined space days before the deaths.
A former top official being so negative is highly unusual, Bochanis said.
“Barker’s myopic view opining that Boyd Gaming’s ‘culture’ was to have safety take a back seat to the bottom line is hollow and smacks of ingratitude,” wrote the defense in a brief, noting Boyd paid for Barker’s training.
Boyd’s policy was not to have employees enter confined spaces, according to the brief.
Boyd’s attorney argued the two supervisors in question couldn’t implicate Boyd because they weren’t policymakers, but Sturman rejected this notion.
Bochanis said he hoped the lawsuit would send a loud message and put companies on notice that safety must be paramount to profits.
“My clients have already lost anything of value, and the only thing left of value is some appreciation by those who make the ultimate decision as to Boyd Gaming’s responsibility,” said Kevin Hanratty, the attorney who represents Luzier’s sons.
Fergen-Koehler said reliving the horrific day at trial would be heart-wrenching but she would do it for her son. Fergen-Koehler went to the Orleans after being told her son was in trouble and said she waited in a room for hours before being told what happened. She said she still hears the helicopters that gathered that day at the scene.
During Friday’s hearing, Fergen-Koehler kept touching the bracelet she wears that is part of a necklace Travis Koehler was wearing when he died.
How the defense has characterized her grief is insulting, Fergen-Koehler said.
She shook her head when an attorney suggested that arguing that Travis was ordered into the hole disparages his memory by diminishing his valiant attempt at a rescue.
Boyd Gaming’s attorney refused to comment on the case.
The case is scheduled to go to trial Sept. 9.