Lawsuit Drags On Decades After Work Injury

SOMERSWORTH, N.H. —  As her hair wound around the drive shaft of the factory machine, ripping away her scalp, slamming her into the shaft and breaking her neck, Gail Merchant Irving had an instant to think: “This is what it’s like to die.”

She was 21 in 1979 when the accident at the Somersworth Shoe Co. nearly killed her.

Her co-worker and boyfriend, Wayne Irving, used his hunting knife to cut her hair from the machine, then accompanied her to the hospital, the first of many where she would endure multiple surgeries and endless rounds of physical therapy in the years that followed.

Gail and Wayne married after she struggled back from near-total paralysis. She remains partly disabled, coping with balance problems, muscle control and numbness in her fingers. She can work, but she cannot button her clothes. She can walk and drive, but she cannot dance or swim. She doubts she would have been able to care for the children she and Wayne wanted but never had.

“I can’t run, so if I have a toddler run out in the street, how can I run after him?” she says.

The physical and emotional battle has been daunting. So has her 18-year legal battle to hold government safety inspectors accountable for the accident. And, like her recovery, it’s not over yet.

For nearly half her life, Irving, now 41, has been pursuing the U.S. Occupational Safety and Health Administration in federal court. She claims two OSHA inspectors who inspected Somersworth Shoe in 1975 and 1978 were negligent because they failed to notice the exposed drive shaft and tell the company to enclose it.

OSHA maintains Somersworth Shoe was responsible for workplace safety, not government inspectors.

Irving received payment for medical treatment and lost wages through workers’ compensation. But under New Hampshire law, workers cannot sue their employers for work-related injuries.

Irving’s case has gone through two trials in U.S. District Court in Concord and four appeals to three-judge panels of the 1st U.S. Circuit Court of Appeals in Boston. After winning the second trial and all the appeals, she was awarded $1 million in damages in April 1998.

But in a 5-2 decision last December, the full appeals court reversed all of its previous decisions and ruled in OSHA’s favor.

The majority said federal law and policy give OSHA inspectors broad discretion to inspect as much or as little as they see fit, and so they cannot be held liable for their failure to note problems with a particular machine.

In May, Irving appealed to the U.S. Supreme Court, which is expected to decide by fall whether it will hear the case.

“The 1st Circuit’s decision fundamentally misconstrues the [law] and creates a huge, gaping loophole that will prevent many other victims of governmental negligence from getting any compensation,” says Leslie Brueckner of the nonprofit Trial Lawyers for Public Justice, which has joined Irving’s appeal. The ruling, she says, guts a law that holds government agencies to the same negligence standards as private companies.

The Supreme Court considers fewer than 200 of the 7,000 cases sent to it on appeal each year. But experts in federal court procedure say Irving’s case invites another look.

For starters, a scathing dissent written by Senior Circuit Judge Hugh Bownes says the majority decision contradicts a key Supreme Court ruling on “the most fundamental question”--whether the individual OSHA inspectors at Somersworth Shoe had the discretion not to inspect the machine that injured Irving.

Bownes says they did not because their supervisor ordered them to conduct “wall-to-wall” inspections. Therefore, he concludes, OSHA is liable.

“If the dissent is right, it sets up a conflict that will come to the attention of the Supreme Court,” predicts Thomas Baker, a professor at Drake University Law School in Des Moines, Iowa, who has written extensively about the federal courts.

Other issues mark the case as a candidate for Supreme Court consideration, professor Kevin Clermont of Cornell University Law School says.

He notes that the 1st Circuit decided on its own to reconsider the discretion issue when OSHA did not request a rehearing and did not raise the issue in its last appeal. The appellate court’s reversal of four rulings by its own panels over 10 years also could prompt high court review.

In a telephone interview, Circuit Judge Bruce Selya, who wrote the majority decision, explained why the court sometimes reconsiders its own panels’ decisions without being asked:

“We would only do that in a circumstance where the majority of the judges of the court felt that the issue had substantial importance broadly to the law . . . well beyond the parameters of a particular case.”

In his ruling, Selya said a decision in Irving’s favor could expose the government to a flood of lawsuits, seriously hindering OSHA’s work.

Still, Selya agrees the courts have taken too long to resolve the case.

On average, federal civil cases that are tried and appealed are resolved in two years, seven months, according to the Administrative Office of the U.S. Courts.

Irving and the 1st Circuit place much of the blame on a lower court judge who delayed his decisions for years and then did not follow instructions from the appeals court. The 1st Circuit finally ordered the case sent to another judge, who quickly ruled in Irving’s favor.

“You would hope that every time a court is confronted with a question, it gets it right the first time around,” Selya says. “That’s the ideal, and I think the vast majority of the time that’s what happens. When that ideal isn’t met, that sometimes sets the case on a tortuous path.”

That’s little comfort to Irving and her lawyer, Paul Cox. The case has taken so long that his son, Matt, a Little Leaguer when it began, is now the attorney handling the appeal.

The Coxes believe the appeals court violated its own rules by reopening the case after the period for reconsideration or appeal had expired. “It’s a terrible black mark on the court,” Cox says.

While Baker, the Drake professor, sympathizes with Cox’s view, he says the appellate court must keep its eye on the big picture.

“The wheels of justice grind slowly and grind finely sometimes,” he says. But he adds, “If you’re a judge, your first duty, your oath to the Constitution, is to get the law right.”

Today, Gail Irving works as a bankruptcy tax examiner for the Internal Revenue Service and tries to lead a normal life.

If she ever collects the $1 million, she would keep only a portion of it. Her lawyers estimate the workers’ compensation insurance carrier for Somersworth Shoe would claim $155,000 reimbursement for medical expenses and lost wages. The Coxes’ fees are capped at 25%. Irving would get the rest.

But she says her main concern is for other injured workers.

“Why do they even have OSHA?” she says. “If they can’t be accountable for what they do, even at the cost of someone’s life or catastrophic injury, then get rid of it.”