Archive for Friday, October 7, 2011

Eudora woman injured in fatal MagnaGro accidentin 2010 files suit against Lawrence company, owner

October 7, 2011

A Eudora woman who was injured and is also the sister of a man who died in an April 2010 industrial accident in Lawrence has filed a lawsuit against MagnaGro Corp. and its owner Raymond Sawyer.

“It was absolutely tragic, pointless and completely preventable,” said Sally Kelsey, a Lawrence attorney representing Rowena Hillebert.

According to the suit filed recently in Douglas County District Court, Hillebert, a former MagnaGro employee, was injured April 1, 2010, when she tried to rescue her brother, Roy Hillebert, 51, from a large tank he fell into and became asphyxiated.

“Specifically, she attempted to reach into a hole that another employee had cut into the side of the tank and pull him out, but nearly asphyxiated in the attempt, and fell backwards,” Kelsey and attorney Donald Strole alleged in the suit.

Authorities have said Roy Hillebert and Brandon Price, 25, died after they were overcome by fumes from a material being mixed at MagnaGro’s fertilizer operation, 600 E. 22nd St. Sawyer and his company have had much legal trouble before and since the accident, and he is serving the final weeks of a nine-month prison sentence in Oklahoma City.

U.S. District Judge Julie Robinson last February revoked his probation in connection to a guilty plea to a misdemeanor in 2009 for discharging waste from his fertilizer operation into the city’s sewer system. Federal prosecutors had argued Sawyer had not complied with his probation terms based on his conduct, including several misdemeanor cases he faced in Lawrence Municipal Court.

In one of those cases, Lawrence police and prosecutors accuse Sawyer of grabbing and pushing Rowena Hillebert during an incident in December 2010 — eight months after the industrial accident. In her civil lawsuit, Hillebert’s attorneys alleged Sawyer shoved her “in a rude, insulting and angry manner” while she was cleaning his office.

The U.S. Environmental Protection Agency one year ago issued a civil complaint and compliance order against MagnaGro for failing to tell the EPA what hazardous wastes were on the site. After the April 2010 accident, Lawrence city officials declared the site “unfit for human occupancy” and boarded the doors.

Hillebert’s Douglas County lawsuit alleges several things about the industrial accident:

• Sawyer failed to provide adequate information to Hillebert and her brother regarding “proper and safe operation of the equipment” at the facility, warn them about the nature of the contents in the tank and about the danger of asphyxiation, or provide safety equipment.

• Sawyer’s actions caused “physical injury, mental trauma and permanent disability” to Hillebert and were the “proximate cause” of her brother’s death, all of which caused Hillebert severe emotional distress.

The suit also alleges Sawyer injured Hillebert in the December 2010 battery incident and caused her “permanent severe emotional and psychological trauma.” Hillebert is seeking damages in excess of $75,000, and Sawyer is expected to be served notice in prison.

Kelsey said Hillbert’s lawsuit is an attempt to recover any potential damages that wouldn’t be covered as part of her workers’ compensation claim. She said she believed families of Roy Hillebert and Brandon Price and another man who was injured also have put in workers’ compensation claims for the accident. But Kelsey said she understood Sawyer did not have workers’ compensation insurance, meaning funds for any claims granted through that process would come from the state’s Workers’ Compensation Fund.

“Our purpose (in the lawsuit) was to ensure that to the extent that workers’ compensation fails to provide compensation for all her damage,” Kelsey said, “that there would be this other stopgap.”

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