Preview
FILED
DALLAS COUNTY
5/31/2019 4:55 PM
FELICIA PITRE
DISTRICT CLERK
Kevin Molden
CAUSE NO. DC-18-05402
EARMON LOVERN, § IN THE DISTRICT COURT
PEGGY LOVERN, §
LACEY LOVERN, and §
STORMY LOVERN §
§
Plaintiffs, §
§
VS. § DALLAS COUNTY, TEXAS
§
EAGLERIDGE OPERATING, LLC, §
USG PROPERTIES BARNETT II, LLC, §
§
Defendants. § 192nd JUDICIAL DISTRICT
PLAINTIFFS’ FIFTH SUPPLEMENTAL RESPONSES TO ALL DEFENDANTS’
REQUESTS FOR DISCLOSURE AND DESIGNATION OF TESTIFYING EXPERTS
TO: Defendant, Eagleridge Operating, LLC, by and through their attorney of record J.J.
Knauff, THE MILLER LAW FIRM , 1950 Turtle Creek Center, 3811 Turtle Creek Blvd.,
Dallas, Texas 75219; (469) 916-2552 – Telephone, (469) 916-2555 – Facsimile; Email:
jknauff@tmlfpc.com
TO: Defendant, USG Properties Barnett II, LLC, by and through their attorneys of record
Douglas D. Fletcher and Keith A. Robb, FLETCHER, FARLEY, SHIPMAN & SALINAS, L.L.P.,
9201 N. Central Expressway, Suite 600, Dallas, Texas 75231; (214) 987-9600 – Telephone,
(214) 987-9866 – Facsimile; Email: doug.fletcher@fletcherfarley.com;
keith.robb@fletcherfarley.com.
NOW COME Plaintiffs and serve their Fifth Supplemental Responses to All Defendants’
Requests For Disclosure and Designation of Testifying Experts pursuant to the Texas Rules of
Civil Procedure.
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 1 of 66
Respectfully submitted,
STEPHENS, ANDERSON & CUMMINGS, L.L.P.
JASON B. STEPHENS
Texas Bar No. 24003001
Jason@Stephensanderson.com
SETH M. ANDERSON
Texas Bar No. 24001654
Seth@Stephensanderson.com
JOHN M. CUMMINGS
Texas Bar No. 00793572
John@Stephensanderson.com
B. ADAM DRAWHORN
Texas Bar No. 24077381
Adam@stephensanderson.com
4200 West Vickery Boulevard
Fort Worth, Texas 76107
(817)920-9000 – Telephone
(817)920-9016 – Facsimile
ATTORNEYS FOR PLAINTIFFS
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 2 of 66
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was delivered
pursuant to the Texas Rules of Civil Procedure on this 31ST day of May, 2019.
Douglas D. Fletcher, doug.fletcher@fletcherfarley.com
Keith A. Robb, keith.robb@fletcherfarley.com
FLETCHER, FARLEY, SHIPMAN & SALINAS, L.L.P.
9201 N. Central Expressway, Suite 600
Dallas, TX 75231
J.J. Knauff, jknauff@tmlfpc.com
THE MILLER LAW FIRM
1950 Turtle Creek Center
3811 Turtle Creek Boulevard
Dallas, TX 7521931
__________________________________
Jason B. Stephens
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 3 of 66
PLAINTIFFS’ FIFTH SUPPLEMENTAL RESPONSES TO
ALL DEFENDANTS’ REQUEST FOR DISCLOSURE
AND DESIGNATION OF TESTIFYING EXPERTS
REQUEST 194.2(a): The correct names of the parties to this lawsuit.
RESPONSE:
Plaintiffs believe the parties are correctly named herein.
REQUEST 194.2 (b): The name, address and telephone number of any potential parties.
RESPONSE:
Plaintiffs will timely supplement upon completion of discovery in this matter.
REQUEST 194.2 (c): The legal theories and, in general, the factual bases of the responding
party’s claims or defenses (the responding party need not marshal all evidence that may be offered
at trial);
AMENDED AND SUPPLEMENTAL RESPONSE AS OF 05.22.19:
A. The Gas Pipeline Explosion
Plaintiffs’ claims arise out of a natural gas pipeline explosion that occurred on August 24, 2017
severely and permanently injuring Plaintiff Earmon Lovern. Specifically, this explosion occurred
at the Donnell 2H wellsite located off FM920 a few miles north of the intersection of FM920 and
FM2210 near Bridgeport, Texas.
Mr. Lovern was a “pumper” and had been working as a pumper for 3 years prior to this explosion.
As a pumper, Mr. Lovern’s job was to drive from wellsite to wellsite to physically read the meters
and gauges, check tank levels, and then log this information. He would walk around the wellsite
and visibly check for any visible issues. He would occasionally restart a compressor if it had shut
off.
On the day of the explosion, Mr. Earmon Lovern arrived at the Donnell 2H wellsite and entered
the tank battery area to conduct his daily meter readings; however, when he arrived he found the
well’s compressor off. As such, he followed his standard protocol by first checking the
compressor’s code panel so he could document the reason the compressor was off. He then
restarted the compressor by pressing its reset button. Earmon then walked around the compressor
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 4 of 66
to check the various valves. While the valves themselves are visible, much of the pipeline running
inside the tank battery area was buried and/or partially buried underground. In particular, the hot
gas pipeline connected to compressor that ran to the valve that Earmon was preparing to look at
was generally buried and likewise had sacks of dried concrete bags on top of it. Unbeknownst to
Earmon, this pipeline was heavily corroded, deteriorated, paper thin, and constituted a deadly
dangerous time bomb, particularly on the bottom side of the pipe which was all underground and
not visible to Earmon. As Earmon bent down to look at the valve, the pipeline exploded directly
in his face. Indeed, Earmon’s face was within approximately 18 inches or less from where the
pipeline exploded. See photographs 1, 2 and 3 below taken after the explosion.
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 5 of 66
This hot natural gas line explosion was so forceful that, as the Court and jury can see in the above
pictures, it blew this buried steel pipe up out of the ground, itbent and ripped the steel pipe in
multiple locations, and it totally split in half the solid concrete that was stacked on top of the pipe.
The explosion likewise sent shrapnel from the pipe along with rocks, gravel, and dirt everywhere.
Indeed, the air was so thick with dust, dirt and debris that Earmon had to “feel” his way out. It is
important to understand that the pipe that exploded was a hot natural gas line with significant
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 6 of 66
pressure and temperatures sufficient to create first degree burns over Earmon’s face, chest, arms,
and abdomen and to burn and singe his nasal hairs and facial hair.
When the explosion occurred, Earmon recalls that it sounded like a bomb went off. It was
extremely loud and his ears were ringing. Earmon recalls his head and neck jerking backward,
being thrown back and landing on his back on the ground. He remembers seeing a flash of orange
then it dimmed to black. Earmon’s next memory after the explosion was him coming to, reaching
and grabbing the ground, crawling and staggering trying to get to his feet in an attempt to get away
from the exploded gas line. He fell back down and kept trying to crawl away. He recalls that he
could barely see due to the immediate injury to his left eye and from the tremendous amount of
dust, gravel and debris in the air. He also recalls that the gas line was still screaming and hissing
very loudly from the escaping gas and that it sounded like he was right next to a jet engine. Earmon
recalls staggering away toward his truck that was parked just outside the gate and falling down
another time to his knees as he was trying to feel his way through the dust and debris to find his
truck. When he got to his truck, Earmon tried to look at himself in the driver’s side mirror but
there was too much dust in the air and he could not see. Earmon got into his truck and realized
that he was in pain, and that he could barely see. He looked at himself in the rearview mirror. By
this time, his left eye was swollen shut and he had to remove and rub dust and debris from his right
eye before he could regain some vision. He also remembers his face and chest feeling burned.
Earmon found his cell phone and called Eagleridge, the Operator of the well, to let them know
about the explosion. Earmon then called his cousin. Not knowing how badly he was injured and
not wanting to wait for an ambulance to attempt to locate him without a good physical address,
Earmon still feeling dazed and confused decided to drive himself to the nearest town of Bridgeport
where he was met by emergency medical personnel and the Wise County Sheriff’s office who had
been notified by his cousin.
B. Earmon Was Severely and Permanently Injured By The Explosion
Earmon was immediately triaged by Wise County EMS, placed in an ambulance, and taken to
Medical City Denton hospital for emergency medical care. Thereafter, Earmon was transferred
by ambulance to Medical City Plano for additional care and treatment.
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 7 of 66
As a proximate result of the explosion, Earmon suffered a host of severe and permanent injuries,
including but not limited to thermal and chemical burns both externally and internally, severe
damage to his left eye, a severe pulmonary injury, and a traumatic brain injury—affecting his daily
life, affecting his short-term memory, affecting his ability to concentrate, causing severe
headaches, dizziness, noise and light sensitivity, balance issues, and ringing in ears, causing PTSD
symptomology, recurring dreams, and difficulty sleeping, causing a total lack of interest in prior
hobbies and the pleasures of life, creating severe anxiety and depression, causing his mind to
wonder to the darkest of places, changing his mood and personality in dramatic fashion, and
generally destroying the loving, fun, social, involved, hardworking husband, father, family man,
friend, and worker who he was before the explosion.
Since the date of the explosion, Earmon has been under ongoing continued medical care by a host
of specialists. Indeed, to this day, Earmon remains under the care of several doctors and is still
awaiting further surgeries on his left eye and is need of ongoing and future care for his pulmonary
injury and traumatic brain injury. Additionally, Earmon’s medical doctors have ordered him off
work since the date of his injury and he is not expected to ever return to work.
C. Defendants’ Neglect of the Donnell 2H and the “Aruba Assets”
The deadly dangerous pipeline at the Donnell 2H wellsite that severely and permanently injured
Earmon Lovern was a ticking time bomb waiting to explode. Indeed, the underside of the pipe
where it failed and blew up was literally just paper thin (perhaps 4 sheets of copy paper).
The Donnell 2H wellsite, including the well, wellhead, the tank battery area, the tanks, the
separators, the compressor, all associated piping and pipelines, and all other equipment and
components involved in the operation of the Donnell 2H (generally and collectively referred to
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 8 of 66
throughout as the “wellsite”), were fully operational for many years before the explosion. Indeed,
it is believed that this well itself was drilled around 2008 or 2009 and it was operational and
producing gas in 2009.
It is believed that USG has owned or held an ownership interest in the wellsite since its inception.
In any event, since at least June 1, 2013, USG has owned all or at least a controlling interest in the
wellsite, including all of the associated equipment and pipelines, as on said date USG purchased
all of 375 Energy’s ownership and interest in the Donnell 2H. 375 Energy had been serving as the
Operator and had an ownership interest in the Donnell 2H wellsite prior thereto. Hence, by June
1, 2013, USG certainly was the owner of the Donnell 2H wellsite, including all associated
equipment and pipelines, or owned at least a controlling majority interest therein.
On August 1, 2013, USG partnered with Aruba (verbally or by written agreement) whereby Aruba
became the Operator of the Donnell 2H wellsite and whereby Aruba held some ownership interest
therein. Moreover, it is believed that USG and Aruba entered into other partnerships or agreements
(verbal and/or written) whereby Aruba was serving as the Operator for nearly 250 wells and
wellsites, including the Donnell 2H, that were owned (or majority owned) by USG in the North
Texas Barnett Shale. These wells and wellsites collectively have been known and are referred to
herein as the “Aruba Assets.”
Certainly, one would expect, that any agreements between USG and Aruba, to the extent they
existed in writing, would have set out certain duties and responsibilities between the parties.
Likewise, it is suspected that any written agreement would have granted Aruba express and
contractual authority to act as agent for USG. Regardless, it is anticipated that the evidence will
show that Aruba was indeed acting as the agent of USG with actual, contractual, express, and/or
implied authority. Hence, any and all agreements and communications by and between USG and
Aruba are relevant to the nature of the relationship and hence USG’s liability for any acts and
omissions of Aruba. To the extent that no written agreement existed and/or can be presented
between USG and Aruba as to the operation of the Donnell 2H, then the parties are deemed to have
been engaged in a general partnership, hence making USG liable for any alleged acts or omissions
by Aruba. Even if a written agreement existed, Plaintiffs allege the evidence will demonstrate that
Defendant USG and Aruba were engaged in at least a joint venture and/or joint enterprise.
This relationship whereby Aruba served as USG’s Operator of the Aruba Assets officially
continued until approximately April 27, 2017 when USG was able to finally buyout and terminate
all of Aruba’s interest in the Aruba Assets via a Purchase and Sale Agreement. However, at some
point in 2015-early 2016, it is believed that USG (through employees, managers and/or officers of
NextEra Energy Resources, LLC and/or other NextEra parent entities, hereinafter collectively
referred to as “NextEra”) began discussions on how to terminate its relationship with Aruba. It is
believed that USG had to have “cause” and/or had to dissolve its partnership, joint venture and/or
joint enterprise in some manner in order to remove Aruba as the Operator of the Aruba Assets.
While witnesses deposed thus far admit that part of the reason for seeking to terminate Aruba as
the Operator was based on USG’s perception of Aruba’s financial condition at the time, it is
believed that the evidence will demonstrate that USG knew and certainly had reason or should
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 9 of 66
have known that the Aruba Assets were not being properly maintained by Aruba. Indeed, the
evidence demonstrates that USG (through NextEra) sent individuals, like Kelly Walker and Blayne
Gunderman, into the field to conduct site inspections of the Aruba Assets. Some of these
individuals were management level and others were from the Health, Safety & Environmental
department for NextEra, but all were acting as representatives, agents or otherwise on behalf of
USG. Through these USG’s inspections (or field trips into the field or however USG attempts to
characterize these inspections) over the course of the years from 2013-2017, USG knew, had
reason to know or certainly should have known that the Aruba Assets were in disrepair and were
being maintained in a subpar fashion. Further, it is believed and there is some evidence already
that USG (through NextEra) conducted an “audit” or audits of Aruba perhaps around 2015-2017
which would demonstrate USG’s knowledge of the condition of the Aruba Assets. Regardless of
whether the audit was actually performed by USG, NextEra or whoever, it was performed by, on
behalf of, and/or for the benefit of USG. Moreover, the letters, emails and other communications
by and between USG (including by NextEra individuals acting as representatives, agents or
otherwise on behalf of USG) and Aruba in connection with or concerning USG’s desire to “move
on” or terminate Aruba as the Operator of the Aruba Assets will likely demonstrate or at least give
perspective and context to USG’s true knowledge of the state of condition of its Aruba Assets.
USG had been planning or seeking to terminate Aruba as the Operator of the Aruba Assets since
at least early 2016 or perhaps even longer because on August 1, 2016, USG entered into a Contract
for Operating Services Agreement with Defendant Eagleridge whereby Eagleridge was to serve as
the Operator of all of the Aruba Assets, including the Donnell 2H. Hence, discussions between
USG and Eagleridge regarding this agreement for Operator services for all of the Aruba Assets
certainly began well prior to the date the agreement was actually signed. It is believed and certainly
would be expected that USG would have communicated to Eagleridge the findings of its prior
inspections, audits, and reasons for wanting to “move on” and/or terminate Aruba as the Operator
of the entire Aruba Assets. Hence, all of these communications are relevant to showing the
knowledge of both USG and Eagleridge concerning the state of condition of the Aruba Assets.
Additionally, under the Operating Services Agreement, USG agreed to pay Eagleridge a sum
certain for each and every one of the 250 wells within the Aruba Assets that were transitioned to
Eagleridge as Operator. As part of this per well transition fee, USG expected Eagleridge to conduct
a thorough site inspection of each and every wellsite, including but limited to inspecting for the
precise type of corrosion and thinning of pipelines that led to the explosion severely and
permanently injuring Earmon. Indeed, Eagleridge had the duty and obligation to ensure that the
Aruba Assets were safe as it knew individuals were in and around the wellsites on nearly a daily
basis. While it is believed that Eagleridge along with at least one USG agent or representative,
Kelly Walker, conducted such site inspections in connection with the transition of Eagleridge as
Operator, it is clear that Eagleridge and/or USG either failed to adequately inspect the Aruba Assets
and/or they failed to take any steps to remedy the litany of hazards and red flags that were or at
least should have been obvious to Eagleridge as a purported seasoned oil and gas Operator and as
to USG as a seasoned oil and gas Owner and likewise as an Operator itself. In any event, it is
believed that Eagleridge (and perhaps USG) took notes and pictures of these site visits to the Aruba
Assets which would document the condition of the Aruba Assets at the time of the transition and
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 10 of 66
which would likely demonstrate or at least give perspective and context to Eagleridge’s and/or
USG’s (a) failure to adequately inspect the Aruba Assets and/or (b) failure to take any steps to
remedy the litany of hazards and red flags that were or at least should have been obvious to
Eagleridge as a purported seasoned oil and gas Operator and as to USG as a seasoned oil and gas
Owner and likewise as an Operator itself.
While the Operating Services Agreement between USG and Eagleridge was signed on August 1,
2016, apparently to due to negotiations and other wrangling between Aruba and USG over the
Aruba Assets, Eagleridge did not take over as the formal Operator of the Aruba Assets until May
1, 2017. The explosion that severely and permanently injured Earmon Lovern was on August 24,
2017. During the nearly 4 month period of time following its formal transition as Operator of the
Aruba Assets, it is believed that Eagleridge did nothing to further inspect the wellsites nor did it
take any action to repair or replace the litany of pipelines that were ticking time bombs.
Indeed, the explosion injuring Earmon Lovern was not a mere one-off situation of Defendants’
neglect. Rather, Earmon’s explosion exemplified and exposed a systemic problem amongst the
Aruba Assets that was well known to Defendants. Following the explosion, while neither
Eagleridge nor USG reported this catastrophic explosion and Earmon’s serious hospitalization and
injuries to OSHA, Eagleridge conducted its own investigation into the explosion on August 31,
2017 wherein Eagleridge found that there were “pressing” and “existing hazardous situations” at
the Aruba Assets.
Indeed, on September 1, 2017, Eagleridge sent an email to USG, through Kelly Walker and Blayne
Gunderman, admitting that “there are 15-20 or more locations with similar discharge lines that
have pipe that has corrosion on the outside of the line with thinning and most likely have a high
degree of risk to loss of structural integrity causing potential hazards to employees and other
contractors.” Eagleridge further admitted that “other location flowlines that have similar
corrosion and thinning on the lower side of the pipe.” Additionally, Eagleridge acknowledged
that there are “high pressure lines on the surface instead of being buried properly” and that there
is “excessive equipment and lines at many locations which increase mechanical failure
potential.” Eagleridge further stated in its email to USG that “we are conducting additional
investigations of flowlines and several locations to supplement this information to help in
ascertaining the extent of these and other issues. In addition, we are analyzing each location
and documenting the hazardous equipment including cost to replace.”
Hence, while Eagleridge and USG have yet failed to disclose the findings of the “additional
investigations,” it is certainly likely that further hazardous situations were identified amongst the
Aruba Assets. And as such, disclosure of the entire investigation and all facts and circumstances
surrounding the investigation, its findings and any corrective action eventually taken are relevant
to a true understanding of the vast systemic and gross neglect that Defendants allowed to permeate,
stew and kindle amongst the Aruba Assets before a man nearly lost his life. And, there can be no
dispute that all of these conditions certainly existed when Eagleridge and USG conducted their site
inspections of the Aruba Assets as part of the transition and hence these are hazards, as documented
by Eagleridge’s own email, that Eagleridge and USG and their management teams consciously
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 11 of 66
chose to ignore as they were readily observable and apparent to Eagleridge as a purported seasoned
oil and gas Operator and as to USG/NextEra as a seasoned oil and gas Owner and likewise as an
Operator itself.
The negligence and gross negligence of Defendants as set forth herein, and as will be further
shown, was a proximate cause of the explosion complained of herein and the resulting severe and
permanent injuries to Plaintiff Earmon Lovern and his family.
CAUSES OF ACTION
A. NEGLIGENCE:
Plaintiffs adopt and incorporate by reference each and every allegation set forth above.
Defendants were negligent in one or more of the following particulars:
a. Creating an unsafe work environment for individuals on the premises, like Plaintiff
Earmon Lovern;
b. Disregarding basic commonsense practices for pipeline safety and maintenance;
c. Disregarding regulations and standard practices for pipeline safety and maintenance;
d. Failing to properly install and maintain the pipeline;
e. Utilizing inappropriate, substandard, used, and/or cheap pipe for the pipeline;
f. Burying the pipeline (partially and/or totally) below ground within the tank battery
area such that it was not capable of being visibly inspected or monitored for corrosion,
deterioration, and/or thinning of the wall of the pipe;
g. Burying the pipeline (partially and/or totally) below ground within the tank battery
area such that it was more conducive to corrosion, deterioration, and/or thinning of
the wall of the pipe;
h. Allowing the pipeline to sit in pooling water, and likely other chemicals and corrosive
agents from the tank battery, such that it was more conducive to corrosion,
deterioration, and/or thinning of the wall of the pipe;
i. Failing to elevate the pipeline off the ground, for example with simple cheap concrete
blocks or bricks, in order to eliminate or reduce the standing water and other elements
and chemicals to which the pipeline would otherwise be exposed to if resting or buried
underground;
j. Failing to elevate the pipeline above the ground, for example with simple cheap
concrete blocks or bricks, in order to allow the pipeline to be visibly monitored for
corrosion, deterioration, and/or thinning of the wall of the pipe;
k. Failing to use or take steps to protect the pipeline from corrosion, deterioration, and/or
thinning of the wall of the pipe, such as using pipe that was pre-coated with
anticorrosion materials by manufacturer, wrapping, painting or otherwise coating the
pipe with anticorrosion materials, using cathodic protection, and/or other available
methods;
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 12 of 66
l. Failing to utilize or replace the pipeline with other less or non-corrosive pipe, such as
stainless steel;
m. Installing, allowing, and/or continuing to allow the compressor to be located within
the tank battery area where it is known or should have been known that water and
likely other chemicals and corrosive agents from the tank battery will pool and pond,
such that it is more conducive to corrosion, deterioration, and/or unsafe conditions for
the compressor and its associated equipment including the hot gas pipeline that
exploded;
n. Installing, allowing, and/or continuing to allow the compressor to be located within
the tank battery area in close proximity to combustive chemicals and gasses;
o. Failing to properly monitor or inspect the pipeline that exploded;
p. Failing to properly monitor or inspect the Aruba Assets in general;
q. Failing to timely and properly take action, inspect, and/or make repairs to the Donnell
2H, including to the pipeline at issue, when Defendants knew, had reason to know, or
should have known that the Aruba Assets in general were in a state of disrepair;
r. Failing to have or implement any corrosion monitoring program or policy;
s. Failing to have or implement a written corrosion monitoring program or policy;
t. Failing to timely or properly repair or replace the pipeline;
u. Failing to act as reasonable and prudent owners and/or operators of a wellsite;
v. Failing to provide suitable protection for individuals on the premises controlled by
Defendants;
w. By placing Plaintiff in extreme danger by requiring him to work on and around the
deadly dangerous pipeline;
x. By failing to maintain a safe work environment;
y. By failing to provide suitable safe equipment and pipelines on the premises;
z. By failing to make safe or warn individuals, including Plaintiff Earmon Lovern, of the
deadly dangerous condition of the pipeline; and
aa. Other acts of negligence which shall be shown.
B. RESPONDEAT SUPERIOR, AGENCY, AND/OR OTHERWISE ON BEHALF OF:
Plaintiffs adopt and incorporate by reference each and every allegation set forth above.
Defendants Eagleridge and USG are vicariously liable for the torts, negligence, acts and/or
omissions of their employees committed in the course of their employment.
Plaintiffs would further show that Defendant USG is vicariously liable for the torts, negligence,
acts and/or omissions of Kelly Walker, Blayne Gunderman, Matt Shafer, Larry Wall, Ron Schier,
John Ragan, Christina Akly, Mark Morgan, Randy Sandoval and any other NextEra individuals
who provided management, services, and/or any HSE work to USG or in connection with the
operations or business of USG. In this regard, said or similar NextEra individuals were acting as
representatives, agents and/or otherwise were acting on behalf of Defendant USG.
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 13 of 66
C. AGENCY, PARTNERSHIP, JOINT VENTURE, AND/OR JOINT ENTERPRISE:
Plaintiffs adopt and incorporate by reference each and every allegation set forth above.
Plaintiffs would show that Defendant USG is vicariously liable for the torts, negligence, and
damages attributed to Eagleridge and/or Aruba. In this regard, Defendants Eagleridge and Aruba
were acting as agents and/or representatives of Defendant USG and were acting with actual,
contractual, express, implied, and/or apparent authority for Defendant USG at all material times
herein.
Plaintiffs would further show that Defendant USG is vicariously liable for the torts, negligence,
and damages attributed to Aruba on account that Defendant USG and Aruba were engaged in a
partnership, joint venture, and/or joint enterprise with regard to the Donnell 2H wellsite.
Plaintiffs would further show that Defendant USG is vicariously liable for the torts, negligence,
and damages attributed to NextEra Energy Resources, LLC on account that Defendant USG and
NextEra Energy Resources, LLC were engaged in a partnership, joint venture, and/or joint
enterprise with regard to the Donnell 2H wellsite.
Defendants’ wrongful conduct in this regard, singularly and collectively and jointly and severally,
proximately caused Plaintiffs’ injuries and damages.
D. GROSS NEGLIGENCE OF ALL DEFENDANTS
The negligent acts and/or omissions of the Defendants as set forth above constitute an entire want
to care as to indicate that such acts and/or omissions were the result of conscious indifference to
the rights, safety and welfare of others, including Plaintiff Earmon Lovern, and thus amount to
gross negligence as that term is defined by the laws of the State of Texas.
The acts and/or omissions of Defendants, when viewed objectively from their standpoint at the
time of the occurrence, involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to others. Further, the Defendants had actual, subjective
awareness of the risks involved, yet nevertheless proceeded with conscious indifference to the
rights, safety, or welfare of others, including Plaintiff Earmon Lovern.
As such, the jury should consider assessing punitive or exemplary damages against the Defendants.
Plaintiffs reserve the right to amend and/or supplement this request upon completion of written
and oral discovery in this case and in accordance with the discovery control plan governing this
case.
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 14 of 66
REQUEST 194.2 (d): The amount and any method of calculating economic damages.
AMENDED AND SUPPLEMENTAL RESPONSE AS OF 05.22.19:
EARMON LOVERN:
Past Medical Expenses:
Plaintiff Earmon Lovern has incurred total past medical expenses in the amount of $147,092.12
approximately as of March 22, 2019 for the reasonable and necessary medical treatment of his
injuries. Plaintiff is still undergoing treatment for the injuries he sustained in the incident made
the basis of this suit and Plaintiff’s counsel is still in the process of gathering records and billing.
Plaintiff will continue to supplement this request as additional medical bills are incurred and/or
received up to trial. Plaintiff’s “paid” medical expenses as of March 22, 2019 based upon what
has been collected thus far are approximately $61,248.14. The amount of “paid” medical expenses
was calculated by adding up the reasonable costs of medical treatment made necessary by the
incident made the basis of this suit less any contractual adjustments and/or write offs by healthcare
providers after payments applied by Plaintiff’s workers’ compensation insurance carrier Texas
Mutual Insurance Company. Several bills are still being processed by Texas Mutual Insurance.
As such, their balances remain fully outstanding at this time. Plaintiff Earmon Lovern’s past
medical expenses previously produced are itemized as follows:
Medical Provider Total Bill: TX Mutual Write-off/ Balance: Paid/Owed
Medical
Ins. Pmts.: Adj.: Expenses:
Wise County EMS $2,459.50 $990.55 $1,468.95 $0.00 $990.55
American Medical $1,382.14 $0.00 $0.00 $1,382.14 $1,382.14
Response
Medical City – Denton $32,248.79 $1,612.47 $30,636.32 $0.00 $1,612.47
– DOS: 08.24.17
Medical City – Plano $23,781.64 $9,600.00 $14,181.64 $0.00 $9,600.00
– DOS: 08.24.17 –
08.25.17
Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure
And Designation of Testifying Experts Page 15 of 66
Questcare Medical $1,965.75 $186.20 $555.55 $1,224.00 $1,410.20
Services, PA – DOS:
08.24.17
Texas Radiology $533.00 $0.00 $0.00 $533.00 $533.00
Associates – DOS:
08.24.17
Acute Surgical Care $2,762.36 $114.03 $2,122.38 $525.95 $639.98
Specialists – DOS:
08.24.17 – 08.25.17
Burn and $306.00 $0.00 $0.00 $306.00 $306.00
Reconstructive
Centers of Texas –
DOS: 08.24.17 –
08.25.17
Preview
FILED DALLAS COUNTY 5/31/2019 4:55 PM FELICIA PITRE DISTRICT CLERK Kevin Molden CAUSE NO. DC-18-05402 EARMON LOVERN, § IN THE DISTRICT COURT PEGGY LOVERN, § LACEY LOVERN, and § STORMY LOVERN § § Plaintiffs, § § VS. § DALLAS COUNTY, TEXAS § EAGLERIDGE OPERATING, LLC, § USG PROPERTIES BARNETT II, LLC, § § Defendants. § 192nd JUDICIAL DISTRICT PLAINTIFFS’ FIFTH SUPPLEMENTAL RESPONSES TO ALL DEFENDANTS’ REQUESTS FOR DISCLOSURE AND DESIGNATION OF TESTIFYING EXPERTS TO: Defendant, Eagleridge Operating, LLC, by and through their attorney of record J.J. Knauff, THE MILLER LAW FIRM , 1950 Turtle Creek Center, 3811 Turtle Creek Blvd., Dallas, Texas 75219; (469) 916-2552 – Telephone, (469) 916-2555 – Facsimile; Email: jknauff@tmlfpc.com TO: Defendant, USG Properties Barnett II, LLC, by and through their attorneys of record Douglas D. Fletcher and Keith A. Robb, FLETCHER, FARLEY, SHIPMAN & SALINAS, L.L.P., 9201 N. Central Expressway, Suite 600, Dallas, Texas 75231; (214) 987-9600 – Telephone, (214) 987-9866 – Facsimile; Email: doug.fletcher@fletcherfarley.com; keith.robb@fletcherfarley.com. NOW COME Plaintiffs and serve their Fifth Supplemental Responses to All Defendants’ Requests For Disclosure and Designation of Testifying Experts pursuant to the Texas Rules of Civil Procedure. Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 1 of 66 Respectfully submitted, STEPHENS, ANDERSON & CUMMINGS, L.L.P. JASON B. STEPHENS Texas Bar No. 24003001 Jason@Stephensanderson.com SETH M. ANDERSON Texas Bar No. 24001654 Seth@Stephensanderson.com JOHN M. CUMMINGS Texas Bar No. 00793572 John@Stephensanderson.com B. ADAM DRAWHORN Texas Bar No. 24077381 Adam@stephensanderson.com 4200 West Vickery Boulevard Fort Worth, Texas 76107 (817)920-9000 – Telephone (817)920-9016 – Facsimile ATTORNEYS FOR PLAINTIFFS Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 2 of 66 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was delivered pursuant to the Texas Rules of Civil Procedure on this 31ST day of May, 2019. Douglas D. Fletcher, doug.fletcher@fletcherfarley.com Keith A. Robb, keith.robb@fletcherfarley.com FLETCHER, FARLEY, SHIPMAN & SALINAS, L.L.P. 9201 N. Central Expressway, Suite 600 Dallas, TX 75231 J.J. Knauff, jknauff@tmlfpc.com THE MILLER LAW FIRM 1950 Turtle Creek Center 3811 Turtle Creek Boulevard Dallas, TX 7521931 __________________________________ Jason B. Stephens Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 3 of 66 PLAINTIFFS’ FIFTH SUPPLEMENTAL RESPONSES TO ALL DEFENDANTS’ REQUEST FOR DISCLOSURE AND DESIGNATION OF TESTIFYING EXPERTS REQUEST 194.2(a): The correct names of the parties to this lawsuit. RESPONSE: Plaintiffs believe the parties are correctly named herein. REQUEST 194.2 (b): The name, address and telephone number of any potential parties. RESPONSE: Plaintiffs will timely supplement upon completion of discovery in this matter. REQUEST 194.2 (c): The legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial); AMENDED AND SUPPLEMENTAL RESPONSE AS OF 05.22.19: A. The Gas Pipeline Explosion Plaintiffs’ claims arise out of a natural gas pipeline explosion that occurred on August 24, 2017 severely and permanently injuring Plaintiff Earmon Lovern. Specifically, this explosion occurred at the Donnell 2H wellsite located off FM920 a few miles north of the intersection of FM920 and FM2210 near Bridgeport, Texas. Mr. Lovern was a “pumper” and had been working as a pumper for 3 years prior to this explosion. As a pumper, Mr. Lovern’s job was to drive from wellsite to wellsite to physically read the meters and gauges, check tank levels, and then log this information. He would walk around the wellsite and visibly check for any visible issues. He would occasionally restart a compressor if it had shut off. On the day of the explosion, Mr. Earmon Lovern arrived at the Donnell 2H wellsite and entered the tank battery area to conduct his daily meter readings; however, when he arrived he found the well’s compressor off. As such, he followed his standard protocol by first checking the compressor’s code panel so he could document the reason the compressor was off. He then restarted the compressor by pressing its reset button. Earmon then walked around the compressor Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 4 of 66 to check the various valves. While the valves themselves are visible, much of the pipeline running inside the tank battery area was buried and/or partially buried underground. In particular, the hot gas pipeline connected to compressor that ran to the valve that Earmon was preparing to look at was generally buried and likewise had sacks of dried concrete bags on top of it. Unbeknownst to Earmon, this pipeline was heavily corroded, deteriorated, paper thin, and constituted a deadly dangerous time bomb, particularly on the bottom side of the pipe which was all underground and not visible to Earmon. As Earmon bent down to look at the valve, the pipeline exploded directly in his face. Indeed, Earmon’s face was within approximately 18 inches or less from where the pipeline exploded. See photographs 1, 2 and 3 below taken after the explosion. Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 5 of 66 This hot natural gas line explosion was so forceful that, as the Court and jury can see in the above pictures, it blew this buried steel pipe up out of the ground, itbent and ripped the steel pipe in multiple locations, and it totally split in half the solid concrete that was stacked on top of the pipe. The explosion likewise sent shrapnel from the pipe along with rocks, gravel, and dirt everywhere. Indeed, the air was so thick with dust, dirt and debris that Earmon had to “feel” his way out. It is important to understand that the pipe that exploded was a hot natural gas line with significant Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 6 of 66 pressure and temperatures sufficient to create first degree burns over Earmon’s face, chest, arms, and abdomen and to burn and singe his nasal hairs and facial hair. When the explosion occurred, Earmon recalls that it sounded like a bomb went off. It was extremely loud and his ears were ringing. Earmon recalls his head and neck jerking backward, being thrown back and landing on his back on the ground. He remembers seeing a flash of orange then it dimmed to black. Earmon’s next memory after the explosion was him coming to, reaching and grabbing the ground, crawling and staggering trying to get to his feet in an attempt to get away from the exploded gas line. He fell back down and kept trying to crawl away. He recalls that he could barely see due to the immediate injury to his left eye and from the tremendous amount of dust, gravel and debris in the air. He also recalls that the gas line was still screaming and hissing very loudly from the escaping gas and that it sounded like he was right next to a jet engine. Earmon recalls staggering away toward his truck that was parked just outside the gate and falling down another time to his knees as he was trying to feel his way through the dust and debris to find his truck. When he got to his truck, Earmon tried to look at himself in the driver’s side mirror but there was too much dust in the air and he could not see. Earmon got into his truck and realized that he was in pain, and that he could barely see. He looked at himself in the rearview mirror. By this time, his left eye was swollen shut and he had to remove and rub dust and debris from his right eye before he could regain some vision. He also remembers his face and chest feeling burned. Earmon found his cell phone and called Eagleridge, the Operator of the well, to let them know about the explosion. Earmon then called his cousin. Not knowing how badly he was injured and not wanting to wait for an ambulance to attempt to locate him without a good physical address, Earmon still feeling dazed and confused decided to drive himself to the nearest town of Bridgeport where he was met by emergency medical personnel and the Wise County Sheriff’s office who had been notified by his cousin. B. Earmon Was Severely and Permanently Injured By The Explosion Earmon was immediately triaged by Wise County EMS, placed in an ambulance, and taken to Medical City Denton hospital for emergency medical care. Thereafter, Earmon was transferred by ambulance to Medical City Plano for additional care and treatment. Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 7 of 66 As a proximate result of the explosion, Earmon suffered a host of severe and permanent injuries, including but not limited to thermal and chemical burns both externally and internally, severe damage to his left eye, a severe pulmonary injury, and a traumatic brain injury—affecting his daily life, affecting his short-term memory, affecting his ability to concentrate, causing severe headaches, dizziness, noise and light sensitivity, balance issues, and ringing in ears, causing PTSD symptomology, recurring dreams, and difficulty sleeping, causing a total lack of interest in prior hobbies and the pleasures of life, creating severe anxiety and depression, causing his mind to wonder to the darkest of places, changing his mood and personality in dramatic fashion, and generally destroying the loving, fun, social, involved, hardworking husband, father, family man, friend, and worker who he was before the explosion. Since the date of the explosion, Earmon has been under ongoing continued medical care by a host of specialists. Indeed, to this day, Earmon remains under the care of several doctors and is still awaiting further surgeries on his left eye and is need of ongoing and future care for his pulmonary injury and traumatic brain injury. Additionally, Earmon’s medical doctors have ordered him off work since the date of his injury and he is not expected to ever return to work. C. Defendants’ Neglect of the Donnell 2H and the “Aruba Assets” The deadly dangerous pipeline at the Donnell 2H wellsite that severely and permanently injured Earmon Lovern was a ticking time bomb waiting to explode. Indeed, the underside of the pipe where it failed and blew up was literally just paper thin (perhaps 4 sheets of copy paper). The Donnell 2H wellsite, including the well, wellhead, the tank battery area, the tanks, the separators, the compressor, all associated piping and pipelines, and all other equipment and components involved in the operation of the Donnell 2H (generally and collectively referred to Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 8 of 66 throughout as the “wellsite”), were fully operational for many years before the explosion. Indeed, it is believed that this well itself was drilled around 2008 or 2009 and it was operational and producing gas in 2009. It is believed that USG has owned or held an ownership interest in the wellsite since its inception. In any event, since at least June 1, 2013, USG has owned all or at least a controlling interest in the wellsite, including all of the associated equipment and pipelines, as on said date USG purchased all of 375 Energy’s ownership and interest in the Donnell 2H. 375 Energy had been serving as the Operator and had an ownership interest in the Donnell 2H wellsite prior thereto. Hence, by June 1, 2013, USG certainly was the owner of the Donnell 2H wellsite, including all associated equipment and pipelines, or owned at least a controlling majority interest therein. On August 1, 2013, USG partnered with Aruba (verbally or by written agreement) whereby Aruba became the Operator of the Donnell 2H wellsite and whereby Aruba held some ownership interest therein. Moreover, it is believed that USG and Aruba entered into other partnerships or agreements (verbal and/or written) whereby Aruba was serving as the Operator for nearly 250 wells and wellsites, including the Donnell 2H, that were owned (or majority owned) by USG in the North Texas Barnett Shale. These wells and wellsites collectively have been known and are referred to herein as the “Aruba Assets.” Certainly, one would expect, that any agreements between USG and Aruba, to the extent they existed in writing, would have set out certain duties and responsibilities between the parties. Likewise, it is suspected that any written agreement would have granted Aruba express and contractual authority to act as agent for USG. Regardless, it is anticipated that the evidence will show that Aruba was indeed acting as the agent of USG with actual, contractual, express, and/or implied authority. Hence, any and all agreements and communications by and between USG and Aruba are relevant to the nature of the relationship and hence USG’s liability for any acts and omissions of Aruba. To the extent that no written agreement existed and/or can be presented between USG and Aruba as to the operation of the Donnell 2H, then the parties are deemed to have been engaged in a general partnership, hence making USG liable for any alleged acts or omissions by Aruba. Even if a written agreement existed, Plaintiffs allege the evidence will demonstrate that Defendant USG and Aruba were engaged in at least a joint venture and/or joint enterprise. This relationship whereby Aruba served as USG’s Operator of the Aruba Assets officially continued until approximately April 27, 2017 when USG was able to finally buyout and terminate all of Aruba’s interest in the Aruba Assets via a Purchase and Sale Agreement. However, at some point in 2015-early 2016, it is believed that USG (through employees, managers and/or officers of NextEra Energy Resources, LLC and/or other NextEra parent entities, hereinafter collectively referred to as “NextEra”) began discussions on how to terminate its relationship with Aruba. It is believed that USG had to have “cause” and/or had to dissolve its partnership, joint venture and/or joint enterprise in some manner in order to remove Aruba as the Operator of the Aruba Assets. While witnesses deposed thus far admit that part of the reason for seeking to terminate Aruba as the Operator was based on USG’s perception of Aruba’s financial condition at the time, it is believed that the evidence will demonstrate that USG knew and certainly had reason or should Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 9 of 66 have known that the Aruba Assets were not being properly maintained by Aruba. Indeed, the evidence demonstrates that USG (through NextEra) sent individuals, like Kelly Walker and Blayne Gunderman, into the field to conduct site inspections of the Aruba Assets. Some of these individuals were management level and others were from the Health, Safety & Environmental department for NextEra, but all were acting as representatives, agents or otherwise on behalf of USG. Through these USG’s inspections (or field trips into the field or however USG attempts to characterize these inspections) over the course of the years from 2013-2017, USG knew, had reason to know or certainly should have known that the Aruba Assets were in disrepair and were being maintained in a subpar fashion. Further, it is believed and there is some evidence already that USG (through NextEra) conducted an “audit” or audits of Aruba perhaps around 2015-2017 which would demonstrate USG’s knowledge of the condition of the Aruba Assets. Regardless of whether the audit was actually performed by USG, NextEra or whoever, it was performed by, on behalf of, and/or for the benefit of USG. Moreover, the letters, emails and other communications by and between USG (including by NextEra individuals acting as representatives, agents or otherwise on behalf of USG) and Aruba in connection with or concerning USG’s desire to “move on” or terminate Aruba as the Operator of the Aruba Assets will likely demonstrate or at least give perspective and context to USG’s true knowledge of the state of condition of its Aruba Assets. USG had been planning or seeking to terminate Aruba as the Operator of the Aruba Assets since at least early 2016 or perhaps even longer because on August 1, 2016, USG entered into a Contract for Operating Services Agreement with Defendant Eagleridge whereby Eagleridge was to serve as the Operator of all of the Aruba Assets, including the Donnell 2H. Hence, discussions between USG and Eagleridge regarding this agreement for Operator services for all of the Aruba Assets certainly began well prior to the date the agreement was actually signed. It is believed and certainly would be expected that USG would have communicated to Eagleridge the findings of its prior inspections, audits, and reasons for wanting to “move on” and/or terminate Aruba as the Operator of the entire Aruba Assets. Hence, all of these communications are relevant to showing the knowledge of both USG and Eagleridge concerning the state of condition of the Aruba Assets. Additionally, under the Operating Services Agreement, USG agreed to pay Eagleridge a sum certain for each and every one of the 250 wells within the Aruba Assets that were transitioned to Eagleridge as Operator. As part of this per well transition fee, USG expected Eagleridge to conduct a thorough site inspection of each and every wellsite, including but limited to inspecting for the precise type of corrosion and thinning of pipelines that led to the explosion severely and permanently injuring Earmon. Indeed, Eagleridge had the duty and obligation to ensure that the Aruba Assets were safe as it knew individuals were in and around the wellsites on nearly a daily basis. While it is believed that Eagleridge along with at least one USG agent or representative, Kelly Walker, conducted such site inspections in connection with the transition of Eagleridge as Operator, it is clear that Eagleridge and/or USG either failed to adequately inspect the Aruba Assets and/or they failed to take any steps to remedy the litany of hazards and red flags that were or at least should have been obvious to Eagleridge as a purported seasoned oil and gas Operator and as to USG as a seasoned oil and gas Owner and likewise as an Operator itself. In any event, it is believed that Eagleridge (and perhaps USG) took notes and pictures of these site visits to the Aruba Assets which would document the condition of the Aruba Assets at the time of the transition and Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 10 of 66 which would likely demonstrate or at least give perspective and context to Eagleridge’s and/or USG’s (a) failure to adequately inspect the Aruba Assets and/or (b) failure to take any steps to remedy the litany of hazards and red flags that were or at least should have been obvious to Eagleridge as a purported seasoned oil and gas Operator and as to USG as a seasoned oil and gas Owner and likewise as an Operator itself. While the Operating Services Agreement between USG and Eagleridge was signed on August 1, 2016, apparently to due to negotiations and other wrangling between Aruba and USG over the Aruba Assets, Eagleridge did not take over as the formal Operator of the Aruba Assets until May 1, 2017. The explosion that severely and permanently injured Earmon Lovern was on August 24, 2017. During the nearly 4 month period of time following its formal transition as Operator of the Aruba Assets, it is believed that Eagleridge did nothing to further inspect the wellsites nor did it take any action to repair or replace the litany of pipelines that were ticking time bombs. Indeed, the explosion injuring Earmon Lovern was not a mere one-off situation of Defendants’ neglect. Rather, Earmon’s explosion exemplified and exposed a systemic problem amongst the Aruba Assets that was well known to Defendants. Following the explosion, while neither Eagleridge nor USG reported this catastrophic explosion and Earmon’s serious hospitalization and injuries to OSHA, Eagleridge conducted its own investigation into the explosion on August 31, 2017 wherein Eagleridge found that there were “pressing” and “existing hazardous situations” at the Aruba Assets. Indeed, on September 1, 2017, Eagleridge sent an email to USG, through Kelly Walker and Blayne Gunderman, admitting that “there are 15-20 or more locations with similar discharge lines that have pipe that has corrosion on the outside of the line with thinning and most likely have a high degree of risk to loss of structural integrity causing potential hazards to employees and other contractors.” Eagleridge further admitted that “other location flowlines that have similar corrosion and thinning on the lower side of the pipe.” Additionally, Eagleridge acknowledged that there are “high pressure lines on the surface instead of being buried properly” and that there is “excessive equipment and lines at many locations which increase mechanical failure potential.” Eagleridge further stated in its email to USG that “we are conducting additional investigations of flowlines and several locations to supplement this information to help in ascertaining the extent of these and other issues. In addition, we are analyzing each location and documenting the hazardous equipment including cost to replace.” Hence, while Eagleridge and USG have yet failed to disclose the findings of the “additional investigations,” it is certainly likely that further hazardous situations were identified amongst the Aruba Assets. And as such, disclosure of the entire investigation and all facts and circumstances surrounding the investigation, its findings and any corrective action eventually taken are relevant to a true understanding of the vast systemic and gross neglect that Defendants allowed to permeate, stew and kindle amongst the Aruba Assets before a man nearly lost his life. And, there can be no dispute that all of these conditions certainly existed when Eagleridge and USG conducted their site inspections of the Aruba Assets as part of the transition and hence these are hazards, as documented by Eagleridge’s own email, that Eagleridge and USG and their management teams consciously Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 11 of 66 chose to ignore as they were readily observable and apparent to Eagleridge as a purported seasoned oil and gas Operator and as to USG/NextEra as a seasoned oil and gas Owner and likewise as an Operator itself. The negligence and gross negligence of Defendants as set forth herein, and as will be further shown, was a proximate cause of the explosion complained of herein and the resulting severe and permanent injuries to Plaintiff Earmon Lovern and his family. CAUSES OF ACTION A. NEGLIGENCE: Plaintiffs adopt and incorporate by reference each and every allegation set forth above. Defendants were negligent in one or more of the following particulars: a. Creating an unsafe work environment for individuals on the premises, like Plaintiff Earmon Lovern; b. Disregarding basic commonsense practices for pipeline safety and maintenance; c. Disregarding regulations and standard practices for pipeline safety and maintenance; d. Failing to properly install and maintain the pipeline; e. Utilizing inappropriate, substandard, used, and/or cheap pipe for the pipeline; f. Burying the pipeline (partially and/or totally) below ground within the tank battery area such that it was not capable of being visibly inspected or monitored for corrosion, deterioration, and/or thinning of the wall of the pipe; g. Burying the pipeline (partially and/or totally) below ground within the tank battery area such that it was more conducive to corrosion, deterioration, and/or thinning of the wall of the pipe; h. Allowing the pipeline to sit in pooling water, and likely other chemicals and corrosive agents from the tank battery, such that it was more conducive to corrosion, deterioration, and/or thinning of the wall of the pipe; i. Failing to elevate the pipeline off the ground, for example with simple cheap concrete blocks or bricks, in order to eliminate or reduce the standing water and other elements and chemicals to which the pipeline would otherwise be exposed to if resting or buried underground; j. Failing to elevate the pipeline above the ground, for example with simple cheap concrete blocks or bricks, in order to allow the pipeline to be visibly monitored for corrosion, deterioration, and/or thinning of the wall of the pipe; k. Failing to use or take steps to protect the pipeline from corrosion, deterioration, and/or thinning of the wall of the pipe, such as using pipe that was pre-coated with anticorrosion materials by manufacturer, wrapping, painting or otherwise coating the pipe with anticorrosion materials, using cathodic protection, and/or other available methods; Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 12 of 66 l. Failing to utilize or replace the pipeline with other less or non-corrosive pipe, such as stainless steel; m. Installing, allowing, and/or continuing to allow the compressor to be located within the tank battery area where it is known or should have been known that water and likely other chemicals and corrosive agents from the tank battery will pool and pond, such that it is more conducive to corrosion, deterioration, and/or unsafe conditions for the compressor and its associated equipment including the hot gas pipeline that exploded; n. Installing, allowing, and/or continuing to allow the compressor to be located within the tank battery area in close proximity to combustive chemicals and gasses; o. Failing to properly monitor or inspect the pipeline that exploded; p. Failing to properly monitor or inspect the Aruba Assets in general; q. Failing to timely and properly take action, inspect, and/or make repairs to the Donnell 2H, including to the pipeline at issue, when Defendants knew, had reason to know, or should have known that the Aruba Assets in general were in a state of disrepair; r. Failing to have or implement any corrosion monitoring program or policy; s. Failing to have or implement a written corrosion monitoring program or policy; t. Failing to timely or properly repair or replace the pipeline; u. Failing to act as reasonable and prudent owners and/or operators of a wellsite; v. Failing to provide suitable protection for individuals on the premises controlled by Defendants; w. By placing Plaintiff in extreme danger by requiring him to work on and around the deadly dangerous pipeline; x. By failing to maintain a safe work environment; y. By failing to provide suitable safe equipment and pipelines on the premises; z. By failing to make safe or warn individuals, including Plaintiff Earmon Lovern, of the deadly dangerous condition of the pipeline; and aa. Other acts of negligence which shall be shown. B. RESPONDEAT SUPERIOR, AGENCY, AND/OR OTHERWISE ON BEHALF OF: Plaintiffs adopt and incorporate by reference each and every allegation set forth above. Defendants Eagleridge and USG are vicariously liable for the torts, negligence, acts and/or omissions of their employees committed in the course of their employment. Plaintiffs would further show that Defendant USG is vicariously liable for the torts, negligence, acts and/or omissions of Kelly Walker, Blayne Gunderman, Matt Shafer, Larry Wall, Ron Schier, John Ragan, Christina Akly, Mark Morgan, Randy Sandoval and any other NextEra individuals who provided management, services, and/or any HSE work to USG or in connection with the operations or business of USG. In this regard, said or similar NextEra individuals were acting as representatives, agents and/or otherwise were acting on behalf of Defendant USG. Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 13 of 66 C. AGENCY, PARTNERSHIP, JOINT VENTURE, AND/OR JOINT ENTERPRISE: Plaintiffs adopt and incorporate by reference each and every allegation set forth above. Plaintiffs would show that Defendant USG is vicariously liable for the torts, negligence, and damages attributed to Eagleridge and/or Aruba. In this regard, Defendants Eagleridge and Aruba were acting as agents and/or representatives of Defendant USG and were acting with actual, contractual, express, implied, and/or apparent authority for Defendant USG at all material times herein. Plaintiffs would further show that Defendant USG is vicariously liable for the torts, negligence, and damages attributed to Aruba on account that Defendant USG and Aruba were engaged in a partnership, joint venture, and/or joint enterprise with regard to the Donnell 2H wellsite. Plaintiffs would further show that Defendant USG is vicariously liable for the torts, negligence, and damages attributed to NextEra Energy Resources, LLC on account that Defendant USG and NextEra Energy Resources, LLC were engaged in a partnership, joint venture, and/or joint enterprise with regard to the Donnell 2H wellsite. Defendants’ wrongful conduct in this regard, singularly and collectively and jointly and severally, proximately caused Plaintiffs’ injuries and damages. D. GROSS NEGLIGENCE OF ALL DEFENDANTS The negligent acts and/or omissions of the Defendants as set forth above constitute an entire want to care as to indicate that such acts and/or omissions were the result of conscious indifference to the rights, safety and welfare of others, including Plaintiff Earmon Lovern, and thus amount to gross negligence as that term is defined by the laws of the State of Texas. The acts and/or omissions of Defendants, when viewed objectively from their standpoint at the time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Further, the Defendants had actual, subjective awareness of the risks involved, yet nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, including Plaintiff Earmon Lovern. As such, the jury should consider assessing punitive or exemplary damages against the Defendants. Plaintiffs reserve the right to amend and/or supplement this request upon completion of written and oral discovery in this case and in accordance with the discovery control plan governing this case. Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 14 of 66 REQUEST 194.2 (d): The amount and any method of calculating economic damages. AMENDED AND SUPPLEMENTAL RESPONSE AS OF 05.22.19: EARMON LOVERN: Past Medical Expenses: Plaintiff Earmon Lovern has incurred total past medical expenses in the amount of $147,092.12 approximately as of March 22, 2019 for the reasonable and necessary medical treatment of his injuries. Plaintiff is still undergoing treatment for the injuries he sustained in the incident made the basis of this suit and Plaintiff’s counsel is still in the process of gathering records and billing. Plaintiff will continue to supplement this request as additional medical bills are incurred and/or received up to trial. Plaintiff’s “paid” medical expenses as of March 22, 2019 based upon what has been collected thus far are approximately $61,248.14. The amount of “paid” medical expenses was calculated by adding up the reasonable costs of medical treatment made necessary by the incident made the basis of this suit less any contractual adjustments and/or write offs by healthcare providers after payments applied by Plaintiff’s workers’ compensation insurance carrier Texas Mutual Insurance Company. Several bills are still being processed by Texas Mutual Insurance. As such, their balances remain fully outstanding at this time. Plaintiff Earmon Lovern’s past medical expenses previously produced are itemized as follows: Medical Provider Total Bill: TX Mutual Write-off/ Balance: Paid/Owed Medical Ins. Pmts.: Adj.: Expenses: Wise County EMS $2,459.50 $990.55 $1,468.95 $0.00 $990.55 American Medical $1,382.14 $0.00 $0.00 $1,382.14 $1,382.14 Response Medical City – Denton $32,248.79 $1,612.47 $30,636.32 $0.00 $1,612.47 – DOS: 08.24.17 Medical City – Plano $23,781.64 $9,600.00 $14,181.64 $0.00 $9,600.00 – DOS: 08.24.17 – 08.25.17 Plaintiffs’ Fifth Supplemental Responses to All Defendants’ Requests For Disclosure And Designation of Testifying Experts Page 15 of 66 Questcare Medical $1,965.75 $186.20 $555.55 $1,224.00 $1,410.20 Services, PA – DOS: 08.24.17 Texas Radiology $533.00 $0.00 $0.00 $533.00 $533.00 Associates – DOS: 08.24.17 Acute Surgical Care $2,762.36 $114.03 $2,122.38 $525.95 $639.98 Specialists – DOS: 08.24.17 – 08.25.17 Burn and $306.00 $0.00 $0.00 $306.00 $306.00 Reconstructive Centers of Texas – DOS: 08.24.17 – 08.25.17