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A jury may wind up deciding whether Tosco Corporation was guilty of falsely imprisoning some workers who were victims of a deadly refinery explosion, but the judge indicated last week Tosco’s poor safety record probably doesn’t constitute a crime. In 1999, several workers were killed or injured when employees cut into a pipe filled with flammable fluid. Steven Duncan was severely injured, and Ernest Pofahl was killed. The plaintiffs in the case are Duncan and Pofahl’s family, as well as John Moylan and Greg Lisle, who say they suffered emotional distress. Duncan v. Tosco, C00-00179, has been closely watched because direct employees who are hurt on the job traditionally collect workers’ compensation benefits. The plaintiffs allege that Tosco’s actions were crimes, which would allow the plaintiffs to sue for millions in damages. Tosco agreed to pay multimillion-dollar settlement awards to other victims — all contract employees — who suffered similar injuries from the blast. In a tentative ruling on several critical motions, Judge James Trembath, of Contra Costa County Superior Court in California, wrote last week that Tosco’s failure to allow Contra Costa firefighters to immediately help rescue Duncan and Pofahl — who were trapped on a scaffolding more than 100 feet in the air — may constitute false imprisonment. Duncan eventually jumped, suffered severe burns, and now uses a wheelchair. Tosco attorney John Lyons of Los Angeles’ Latham & Watkins, argued that Duncan and Pofahl weren’t held against their will after the accident. Contra Costa firefighters were supposed to follow the lead of the in-house rescue workers, said Lyons. The allegations brought by the plaintiffs are merely a critique of Tosco’s rescue efforts, he said. Even if the refinery made a bad call, it didn’t constitute false imprisonment, he said. “That is not violence,” said Lyons. “That is not coercion.” Trembath was leaning toward Tosco’s view about a key allegation in the plaintiffs’ case: The judge wasn’t convinced that Tosco’s poor safety record, staff cutbacks and alleged threats to workers who spoke up about safety constituted a crime. If that becomes Trembath’s final ruling, it would be a blow to one of the big issues that the plaintiffs hope to argue in trial. In particular, it would be a blow to Lisle and Moylan, who weren’t physically injured. On Friday, the plaintiffs’ attorneys from Oakland, Calif.’s Gwilliam, Ivary, Chiosso, Cavalli & Brewer tried to change Trembath’s mind. Workers’ comp was intended to compensate workers for injuries that were expected parts of the job, said lead attorney J. Gary Gwilliam. “Is it within the employees’ expectation that they would be sent into a dangerous situation with knowledge that they would be hurt,” said Gwilliam, “and that they would lose their job if they complained about safety?” Trembath said he expects to make a final decision about the motions in the upcoming weeks.

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