Trueblood lawsuit withdrawn from federal court, refiled in Potter County
A wrongful death lawsuit brought by the family of Peyton Trueblood, who was killed in a fireworks accident in July 2015 while working for the musical “TEXAS” in Palo Duro Canyon State Park, has been withdrawn from a federal court and has been refiled as a state case in Potter County. The new suit also introduces two additional defendants who face three allegations from family.
Trueblood, 21, a University of Alabama Theatre and Dance Department student from Tuscaloosa, died on the night of July 31 when a storage container filled with fireworks exploded while she was inside the structure at the defendant’s direction, according to the suit.
The new suit, filed in the 47th Judicial District, was moved because one of the two companies now named in the lawsuit was based in Alabama, lawyers said.
“Since Defendant Ultratec Special Effects and the plaintiffs are residents of the State of Alabama, no diversity exists,” court documents stated (meaning the federal court did not have jurisdiction, while a state court would).
In addition to Ultratec Special Effects, the distributor of the fireworks, Wald and Company Inc., a Missouri-based company who manufactured the fireworks, has also been named in the suit. As such, both parties now face three counts: Strict Products Liability - Manufacturing Defect; Strict Product Liability - Design Defect Against; and Strict Product Liability - Failure to Warn against.
The Trueblood family is being represented by Amarillo attorney Jesse Quackenbush along with Los Angeles-based attorney James A. Morris.
“There was an amendment of the procedures,” Morris said of the new allegations. “And we believe that we’ll be able to discover facts that they had some level of responsibility.”
Morris said some aspects they will be researching have to do with how the two companies shipped the fireworks, how the explosives were stored, and if there were sufficient warning labels on the items insideof the storage container.
“The fireworks manufactured by Defendant Wald and Company and distributed by Defendant Ultratec Special Effects were in a defective condition, unreasonably dangerous due to defects in the design, manufacturing, and/or inadequate warnings on the occasion in question,” court documents state in the suit’s introductory allegations.
The original lawsuit, filed on Sept. 29, 2016 in the United States District Court for the Northern District of Texas, sought damages against Blaine Bertrand, Kris Miller, Rick Bertram, and Dennis Rice, all workers involved with “TEXAS,” for Negligence, Gross Negligence, and Strict Liability.
The four are represented in the case by Peterson, Farris, Boyd & Parker of Amarillo, while Ultratec Special Effects is being defended by Terry Fitzgerald, Richard A. Branca, Royston, Rayzor, Vickery & Williams LLP, a Houston-based law firm. A representative for Wald and Company Inc. was not listed in court documents.
The four defendants filed an initial answer to the allegations on Oct. 19 in the Northern District Court, denying the allegations against them.
“(T)he primary reason for the lawsuit is to assure future tragedies are prevented,” Quackenbush said in a statement when the federal suit was filed. “Peyton’s mother received numerous letters and telephone calls from this year’s cast and crew alleging that the defendants continue with their unsafe practices and have not been abiding by their plea bargain agreement with OSHA,” Quackenbush said at the time.
In February 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a $42,000 fine and six “serious” citations against the Texas Panhandle Heritage Foundation Inc., producers of the musical, after investigating the explosion. The Department of Labor said the musical production had failed to do five things: train workers on the use of explosives; provide fire retardant clothing; perform a hazard assessment; and, develop a written hazard communication program. Each of the six citations carried a $7,000 penalty.
Later, in a State Fire Marshal’s Office investigation report, an Aug. 5, 2015 interview with Blaine Bertrand conducted at the Randall County Sheriff’s Office detailed which crew members were allowed to fire the fireworks.
The Texas State Fire Marshal’s office closed their investigation into the case in September and ruled the cause of the explosion to still be undetermined, according to Jerry Hagins, a spokesman for the Texas Department of Insurance in Austin.
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2 killed in Ultratec explosion not only workers harmed in fireworks manufacturer's history
Crystal Bonvillian
on February 10, 2015 at 2:48 PM
Investigators are still looking into the explosion that killed two workers on Friday at an Owens Cross Roads fireworks manufacturing facility that has a long history of similar incidents.
The onsite investigation at Ultratec Special Effects is over and the scene has been released back to the company, said Special Agent Michael P. Knight, a public relations officer with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)'s Nashville office.
Knight said the main focus of the investigation now is to determine the cause of the explosion that killed 43-year-old Aimee Cothran of Huntsville and 51-year-old Marie Sanderson of Union Grove. Knight said that samples of the "blast seat," or the point of detonation in the explosion, have been collected and are being analyzed at the lab.
"The results of laboratory, combined with the interviews conducted, will aid in determining if the incident was accidental or criminal in nature," Knight said.
The fire and explosive reports have been completed by each of the agencies involved in the investigation, Knight said, which includes the ATF, the Alabama State Fire Marshal's Office and the Madison County Sheriff's Office.
Ultratec fatal explosion, Feb. 6, 2015 This aerial footage shows the scene after an explosion at Ultratec in Owens Cross Roads killed two employees and injured four other people on Friday, Feb. 6, 2015. (Footage provided by Pete Dobbs)
Ultratec is a world leader in indoor and "close proximate" pyrotechnics, such as those used at concerts and theme parks like Walt Disney World. Though it has offices in Canada and Germany, it is based in Owens Cross Roads.
A statement on the company's website says that "thoughts and prayers" are with the families of those affected by the explosion, including those injured in the blast. McKenna Whorton, daughter of State Rep. Ritchie Whorton (R-Owens Cross Roads), is being treated at the UAB Burn Center in Birmingham for severe burns and an unidentified man is being treated at Huntsville Hospital for similar injuries.
Two others sustained minor burns.
"Safety is our first priority," Ultratec's statement reads. "Ultratec is committed to investigating the incident and will assist local, state and federal officials in determining its cause.
"Our immediate focus is assisting the employees and their families whose loved ones were lost or injured (Friday). Further information about the incident and its cause will be communicated when available and appropriate."
Friday's explosion is not the first incident in Ultratec's history that has injured or killed workers. The latest explosion, in November 2013, caused extensive damage to the facility, as did a 2010 fire, but there were no injuries in either of those incidents.
That was not the case in September 1999, when an explosion leveled one of the complex's buildings, killing Michael Vernon Ray, 35, and critically injuring Mike Brookshire. The men, who were inside the building, received second- and third-degree burns over 80 to 90 percent of their bodies.
A third worker, Mike Davis, was outside of the building, but was also injured. Davis had been burned in a smaller lab explosion just a few months before.
Ultratec was known as Luna Tech at that time. The U.S. Occupational Safety and Health Administration fined Luna Tech $65,000 after the fatal explosion for what it said were improperly trained employees, a lack of an emergency plan and improper handling of hazardous materials.
About two weeks after OSHA handed down that fine, the company's owner, Tom DeWille, was himself critically injured in an explosion at the facility. DeWille, who was mixing the chemical compounds to make electrical matches, recovered from first- and second-degree burns on his face, neck, hands and upper body.
OSHA fined the company $116,200 for that explosion, citing its failure to provide a plan for personal protective equipment for employees. DeWille was also cited for not wearing the proper gear and for improper storage of electrical equipment in the room where the explosion occurred.
DeWille no longer owns the company. His LinkedIn profile indicates he retired as the company's president in 2002.
The Alabama Secretary of State's records list W. Brad English as the incorporator of Ultratec. The current president is Adrian Segeren. Ray's widow, Robin Ray, sued Luna Tech for wrongful death, but court records show that the lawsuit was dismissed with prejudice in April 2001. Brookshire also sued and settled with the company, which paid for the lengthy medical treatment he needed for his injuries.