Anyone conducting an investigation to determine the root cause of Mark’s accident or any accident where a locomotive is alleged to be defective would analyze the significance of the other pieces of similar equipment. It is critical information to determine fore knowledge or negligence if the opposite were true. What if all the other trains were defective!
The greatest danger in tramming the 1700 level is pulling a load. By that I mean the motor pulls it or pushes it in or out. TRAMMING IN A MINE GOES BOTH WAYS. In the Sixteen to One just as many trips take items into the working areas as trips taking material out. In establishing a new work place, the trammer operator most likely will be bringing more material into his heading than taking it out.
The prosecutor has proven that the gap between the locomotive top and the chute was two inches. The respondent agrees that the space between the locomotive battery box and chute is this much “________________________” (this line is two inches). Cain testifies that Marks head and body would pass through this space if the train hit the chute and the power circuit remained intact. No one will ever know for sure, but is it reasonable for a fully dressed miner, Mark Fussell, or is it even possible that the driven, energized Mancha Trammer on the 1700 level could push Mark through a space this size: “________________________”.
Cain interviewed Brit McDaniel, the electrician who serviced the locomotive prior to moving it to the 1700 level station. His statement cannot be shoved aside. Exhibit ‘N’. Then you ask him, “Did you work on the battery connector?” Answer, Yes, I did, meaning Cain asked McDaniel. McDaniel answers, No it was in good shape. (P 306, L 16-20
How thoroughly did Cain study or analyze the autopsy report? Very little. He was asked, “Did you use the autopsy report at all in evaluating – was that a piece of evidence for you in doing your analysis of this investigation of this accident?” Answer, “The only thing that it meant to us is that we had to eliminate drugs, and that was eliminated. We wanted to – we already knew pretty much everybody’s description of how Mr. Fussell died.”(P 308, L 1-9).
The Court asks, “Was Mr. Fussell facing the chute?” Cain answers, “It’s hard to discover whether he was or not. It’s very difficult.” Miller stated that an expert reviewing the autopsy concluded “that there was such great trauma to Mark Fussell that it was the equivalent of driving 25 miles an hour.” (P 425, L 20-22). Mark’s injuries clearly prove that he was not looking forward.
Cain simplifies his understanding of the violation cited, “but to me it was a non-issue.” The fact that he impacted the chute, and it was a low clearance issue was the reason that he hit the chute and that was the violation. (P 308, L19-22). There is no dispute that 1) he impacted the chute; 2) it was a low clearance was the reason he hit the chute.
The snide suggestions that the miners purposely drove defective locomotives, intentionally worked in easily recognizable hazard areas or were too dumb and untrained are underpinnings for Cain’s theory.
He raises doubt, which someone unfamiliar with mining in general and mining at the Sixteen to One may give credence. Example: regarding health and safety policies and procedures and record keeping. He alludes to a lack thereof but himself says what he fails to find is not required. He found some written and “that a lot of the policies are not written, a lot of them are verbal, they’re understood policies.” (P 309, L21-22). He says work place examination where the miners record their work. (Exhibit ‘O’). Question, “By reading those can you decipher whether Mark had driven the train beyond the chute prior to the day of the accident?”
Answer, “I think it would be impossible to determine that in the fact that your workplace examination records say “okay” and that’s all they say. That’s all the law requires you to say. It doesn’t have to tell me whether or not a train traveled to a certain area at a certain time. I don’t think any mine does that. I don’t think they tell us to say ‘drove over to the dump and dumped.”
“ It requires you to do a workplace examination. Any safety hazards that are found are to be corrected upon finding them. When I looked at those workplace examination records, most of them said ‘okay’ on them, and they had an initial and they gave the location of the work place in general terms of the 1700 level, the 800 level, things of the nature.” (P 310, L 24 to P 311, L 12).
Cain’s last summation of his case and opinion that the resistor was damaged prior to the accident is flawed. He assumes that the connector would not hold together upon Mark impacting the chute; therefore the power to the resistor was cut off; therefore the stalled locomotive would stop immediately. There is no evidence supporting this contention.
Cain does not understand the role a resistor has in the electrical circuit or how vulnerable it is to abuse. It will melt. Cain, “The resistor had to be burned at some time before the accident, or had to have been defective before the accident because it’s not a piece of item that is readily burnt out. It can be worn out by abuse but not instantaneously.” ( P 312, L 7 to 12).
Cain, “if they had power to it they would have moved that locomotive by power, and they didn’t do that.” Vince could not get to the controls because of Mark’s position. Vince pushed the trammer backwards. Again, Cain makes an erroneous conclusion.
Prosecutor introduces Exhibit ‘V’ in his redirect examination. An important visual drawing is identified. Question, “You have a diagram here on ‘V-3’ page 3. Who drew that, if you know?”
Answer, “Actually this picture is only an illustration, it is not an actual depiction of accuracy…
The Court, “You mean it’s not accurate?”
The Witness, “It’s not accurate, no sir. (P 316, L 18-25). This inaccurate piece of disqualified evidence has circulated on the worldwide MSHA site for years.
The injuries Mark sustained tell a story about the nature of the impact. Question, “If the power were off immediately after the accident, is it your position that the trauma that Mark Fussell experienced was upon impact?”
Answer, “Impact with the chute and the top of the locomotive, absolutely.”
Question, “Well, would Mr. Fussell have experienced greater damage to his body if power had been on for ten seconds than if it were on for three seconds, or one second?”
Answer, “I wouldn’t know that”
Cain testifies that when MSHA questions operators failure to promptly correct a situation, that “promptly” means, ‘immediately upon knowledge’.” (P 319, L 12). Does he mean knowledge by the company or the miner?
Cain’s understanding is shallow. He has never been to the mine before (he was never task trained and drove a locomotive – years ago). Although always available, he never reviewed and analyzed the written policies and procedures that all miners received upon employment. The employee manual was written in 1995 and updated when required. He never established data to either support or discredit his opinion through statements by other miners.
When Bob Montoya checked out the other trammers, the miner did what was asked of him. He went through the whole process. A locomotive is never left with the two halves of the power connector together. The power is separated because the locomotive does not have a dead man switch. It has been discussed with state and federal inspectors for years.
The policy is to disconnect the power when going off the train. Even for a second! Why even for a second? The miner may be called to assist in another area and someone else may approach the locomotive. This mine has many demands and situations that change quickly. The crew is trained to always disconnect. The other reason is consistency. People who did not know Mark Fussell are referring to him as a ‘victim’. No one who knew Mark, including his parents, his sisters, his girlfriend, his guy friends, his fellow miners, his neighbors or his employer would ever describe Mark as a ‘victim’. Mark was an American certified hard rock underground gold miner.
MSHA investigators interviewed many people including some of the above regarding Mark’s untimely death. Yet the investigating report is conspicuously devoid of exculpatory findings. Cain’s notes do repeat that he contacted Mark’s parents.
On November 6, 2000, Jonathan Farrell was the mine manager, employed by the company seven years. He began as a chuck tender, his duties and responsibilities grew: handling gold, surface superintendent, mine manager. Surface duties include equipment repair and maintenance.
Jonathan had over a twenty-year friendship with Mark Fussell. Mark was born into mining and was a lead miner. Farrell describes a lead miner: multitask oriented, trained and brought up to have the background, training and ability to maintain a safe working environment, whose work area is his responsibility.
The Court, “So the Lead Miner is the person who would be in charge of that particular work group?
THE WITNESS: That’s right. He reports directly to the underground foreman or the mine manager. In this case I was acting as both. I had both responsibilities. (P 366, L 1-27).
Respondent’s Exhibit ‘O’ is a daily progress report/workplace examination. “It’s all encompassing. If I put it all on one page then I could meet the needs of everybody by having people fill out one page at the end of the day.” (P 368, L 23-28).
Farrell compiles the daily work reports and makes a progress report for the president. “Each miner, whether he’s a Lead Miner or a chuck tender, or a hoist man, or he works on the surface or anywhere, it’s required that each person takes a look at the area that they’re working in and examines it to be safe.”
Farrell describes how the miners handle defective equipment at the Sixteen to One Mine: “Basically each person is tasked with understanding and operating a piece of equipment and knowing how it’s supposed to operate properly. My instructions, and the understanding, were that if you had an issue with a piece of equipment, if it was not functioning properly and you didn’t have the ability to fix it immediately, then it was your responsibility to lock it out and make it so no one else could use it. If it’s something that doesn’t require immediate attention you could note it on here, or bring it up at the safety meeting. (P 369, L 6-23).
Mark Fussell was lawfully trained and in compliance, as was his partner, Vince Kautz. (P 377, L 1-7) (Exhibit ‘R’).
The company has regular formal weekly safety meeting but quite often met more often. (P 380, L 7-8). The meeting prior to Marks accident was 10/31/00. The topic that day was tramming and Mark attended. The company had a safety trainer and safety rep, Steve Shappert. Shappert had 20 years of mining experience, 15 or 16 at the Sixteen to One, is an EMT and volunteer fire fighter. Steve is an experienced trammer operator. (P 381, L1-22)
With regard to Respondents Exhibit ‘F’. The reason for this Exhibit is to verify a strong safety program for the mine and that Mark Fussell and Vince Kautz attended the weekly meeting six days before the accident. The topic was tramming and Steve Shappert was qualified to conduct the meeting. The notes are an uncomplicated and expected list of things to do and not do, which specifically say, “Check your trammer brakes, battery water, lights, dead man, horn and electrical system.” Farrell is confident that Shappert spoke what was on his notes during the meeting. The Witness, “I could explain to you that some of the things that he said in here, as with the piss ditch being funny, were so humorous that when I came back I heard about it. And I had asked Steve to compile this in regards to making — to running the safety meeting because he had a lot of experience in tramming. (P 385, L 14-19). Cain acquired these notes during his investigation on November 8th or 9th. The Witness, ” I produced it and gave it to him.” (P 286, L 7).
Farrell describes how the trammer functions and specifically the one on the 1700 level: It’s a low speed high torque piece of equipment. The wheels can spin but never while the trammer is completely stopped. Mark could not have brought the heavy slusher from the 1700 station to the end of the work area in second or third gear without going into first. The estimated distance of 3000 feet is uphill at a 1% grade. The turns are so sharp you must move the gear into first and second for proper operation. “If you were in second gear the train would probably come off the track.” (P 388, L 8-9). Farrell’s credibility, “Well, my experience of driving it.” (P 387, L 28).
The company employed three men who are qualified electricians capable or repairing trammers and specifically a resistor. The Court, “Any of those three could have repaired that defective resistor, replaced it?” The Witness, “Yes, absolutely, at the minimum, any of those three. And quite honestly, virtually everybody who worked there had the ability to change that resistor; it’s not a complicated item. You simply unplug the wire where they connect and reconnect the new item, which we keep them on the shelf; they’re subject to wear.” (P 390, L 2-7).
While it is a simple task to replace a resistor, it is located under two battery boxes, each one weighing 920 pounds. Every level at the 49 Winze has a hoist at the station. A person under the company policies must be tasked trained to operate the hoist.
The mine manager conducted an investigation, ” I reported to you that Mark had come to work late, he had personal issues in his life. It was my responsibility to make sure that he was of sound mind before he went to work. We sat down and had a discussion in the stope, and I really felt that he had put it behind him and he was ready to go to work for the day, and that he simply didn’t look where he was going. Had he looked where he was going, it wouldn’t have happened. That was my conclusion.” (P 392, L 21-28).
Farrell never was on the level on November 6 because no one was working on the level when he arrived to see Mark. They met in the stope above where the slusher was to be installed (P 394, L 5-6).
Chutes are not the only clearance hazard in the mine. Question, “Did the company have items to warn of hazards on site?” Answer, “Yes.” (P 395 L 26-28; P 397, L 26-28
Question, “Did Mark have access to them?” Answer, “Yes.” Question, ” Was Mark trained to recognize hazards?” Answer, “Yes.” (P 397, L 1-5)
Noteworthy:
Mr. Wilkinson objects throughout the hearing by saying. “Calls for speculation.” Because Miller did not invoke, “Calls for speculation” and object to all of MSHA speculations does not mean that he agreed with the relevance of or value of their speculations. He purposely did not challenge it and allowed it in order to demonstrate that the entire MSHA case is speculation. The judge would likely have recognized the lawyer’s tactics and sustained Miller’s objections if made.
Cain cheats with his understanding of where Jonathan Farrell and Mark Fussell met before the accident. It is basic and fundamental dialogue or definition of mining. A raise or stope, an excavation is identified as originated from the lowest level. The work place where the slusher was under construction was between the 1500 level and 1700 level, the 1700 level being below or lower, the area is identified as a 1700 level raise, not a 1500 decline. It is the only way to describe it.
Farrell does his best to explain. ” Your Honor, when I said I was on the 1700 I wasn’t talking about the level. I said clearly I was in the raise. And the raise goes from the level between the 1500 and the 1700 levels. And I met him at the top of it. I was clearly not on the level. When I called it the 1700, everything below the 15 to the 17 is considered the 17. But in regards to whether I’ve been on the 1700 level that day, I was not. (P 400, L 1-8).
The events then unfolded rather quickly over a couple of days to allow the Federal investigators, the State of California and the Sierra County Sheriff to conduct whatever type of operation they desired. “There was a hundred percent cooperation by Original Sixteen to One Mine” to facilitate their needs. We let everyone go on the day of the accident. I let everyone know that they would be paid, and it was not mandatory for them to come to work the next day. And I gave them the rest of the week off if they wanted to go off.” (P 417, L 1-10).
Miller recognizes his lawful obligation according to MSHA Regulations to notify and cooperate with the agency and conduct an independent investigation of the accident. He is trained in the scientific approach of investigation and has used MSHA’s earliest guidelines for understanding the nature of accident investigation. He testifies that, “My investigation was 100% unbiased. My investigation didn’t end on January 12th, my investigation is still open.” (P 424, L 6-7).
‘Exhibit ‘S’: Written Policy and Procedure in force and affect at the Sixteen to One Mine during the year of the accident. On the mine site, Farrell had the responsibility and the ultimate responsibility was Michael Miller.
Miller testifies that he is well aware of the safety standards of the Sixteen to One Mine, that everybody at the mine is well aware of hazard recognition that everyone has the equipment, tools and resources to put safety first; that we won the safety award that MSHA gives for running a safe mine; that he has worked with these men for five years or more; that we have a very open and honest relationship; that the relationships of the miners at the Sixteen to One is very different from others. (P 421 L 12-28)
Question, “What’s the policy of the operator (The Company) in regard to defective equipment?”
Answer, “The policy was to train individuals in regards to what the standards were and what their expectations should be. (P 388 L 14). I determined that the cause of the accident that took Mark’s life was the greatest cause of all accidents, and that was human error. I wish not to say blame is what we’re trying to do at this particular hearing, but it’s trying to get to the truth of the accident in order to be able to eliminate the problems. (P 422, L 2-7).
The main speculation by MSHA, operating the locomotive without first gear, Miller doubted was accurate.
“The main one is that any miner at the Sixteen to One would put in place a trammer with a defective first gear. That is absolutely not true. The facts that I learned supported this when Mr. Montoya and I went to the other two trains. I will testify that I went to the other trains that were working at that property, holding my breath hoping that they would engage properly in all three gears and be no defects. There were no defects on those trains. The reason that I pointed out the little ball, the little round horn on the one train to someone that was testifying, what is that, is that was an MSHA requirement that if you — the conclusion to be drawn from that is putting, keeping your equipment well up, if you put a backup device on there you’re certainly going to take care of the major issues like the mechanical or the electrical issues.” (P 422, L 9-23).
The chute was not marked and it’s a simple task. It was the only chute (other than one on the 800 level which has an electric light since it was installed in the 1980’s) that required any type of markings. (P 423 L 1-4).
MSHA regularly inspected the mine four times a year with two three or four inspectors. If they found even a petty citation they would write it. The 1700 level was a second exit and always included in an inspection. There was never a citation written for hazard clearance on the 1700 level.
Direct testimony from Miller, “One item that needs clarification is the autopsy and the conclusions from the autopsy. I feel that my position right now as an investigator is no different than Mr. Cain’s. And if Mr. Cain can — Mr. Cain never talked to Mr. Massey, he went through a third party, and yet that was their sole electrical witness for our electrical. Mr. Cain didn’t mention Mr. Massey in his investigation report. His name was not as one of the contacted parties so I was not aware of Mr. Massey until this hearing. And so what’s good for the goose, I guess I’m asking, is that good for the gander? And I — I reviewed the autopsy. I got the autopsy, and I also reviewed the doctor’s statements, and I came to conclusions. The conclusions were that based on the statements in the written report, which were given under perjury by the doctor, that there was such great trauma to Mark Fussell that it was the equivalent of driving 25 miles an hour. The testimony that was given today clearly is trying to say that Mark hit the chute, the power went off, the machine stopped and he died. The autopsy facts of the trauma to the left side of the head and the right side of the head to the speed, to everything, including the testimony that the doctor gave in the grand jury, does not bear witness to that to be true. So I’m testifying that based upon the autopsy it is impossible to reconstruct the scenario that MSHA has constructed. I believe their scenario was offered in good faith; however, it’s wrong I came to the conclusions that the train was working properly when Mark decided on his own to use that that day at his heading. Why? Well, the defective part was something that we had on the shelf. The electricians who do all the types of repairs had worked on that machine two weeks before. We have a policy of never putting a defective piece of equipment underground. Why? Because it’s so darn hard to get a piece of equipment underground. You’re foolish if you ever try to think to put a defective piece of equipment underground. That’s almost like a given in my mind. I don’t know anyone that would put a defective piece of equipment underground. So I saw the ability to repair something was there, that there were repairs made to a machine. The parts that we later found out were broken were on the shelf. And I came to the conclusion that when the machine was put in play and driven by Mark, he was the first person to use it in his work to the best of my knowledge, it was a properly functioning machine. So then I had to look for other causes of why, of what happened and why that resistor broke. I want to testify that I was at all times — first of all, after the accident no one went on the 1700 level without me, that was off limits. I contacted Bob Walker because he was the most experienced person with trammers and electrical background that I knew of, and I asked him if he would take this machine apart and keep notes and see what he came up with. He agreed to come up and do that. He met me at the office. (P 425, L 7 to P 427, L 4).
Miller valued the do’s and don’ts of operating a trammer because he talked with a number of mining people, “and they said that the resistor is the type of thing that did exactly what it’s supposed to do. It was under pressure, it couldn’t move, and it eventually or quickly burned out, which is what it’s supposed to do.” (P 428, L 16-19)
The Court questions how Miller knows certain things to be true. (P 428, L 25).
“I know the policies of the company, and I know everyone here well enough to know that you do not put a train, you do not put a piece of equipment in the mine that’s not working properly. I drive a train. I’m not skilled, but I drive a train. So I’m familiar with how you put them in gears and what you do. And you would not drive the 1700 level in second gear. It is twisty and turning and you would — you would not — you would — you’ve got to gear down. I am used — when I drive a train I’m going from first, second and third almost back and forth depending on the conditions. Tramming is one of the most dangerous jobs in a mine. Driving a train is not just like driving it in the city or on tracks. When you put it into gear and then you go forward it requires constant adjustment, at least at the Sixteen to One. I don’t know about other mines. I’d like to make it clear that I’ve only worked in mines in Alleghany, or these hard rock mines of California. I would be totally lost in a coalmine or a larger mine. I don’t know anything about those operations. So I do know, I know how the trains are supposed to run, and I know the conditions of the track, and I know that they would not put it in there if it weren’t working properly. Then the next step was well, could it have burned out. Could that — it received electricity to the point where it happens when you fry any type of a circuit breaker or fuse. The resistors as I saw were similar to the part that is supposed to fail. I was told by numerous people that the resistor did exactly what it was supposed to do, it dissipated the energy. So I looked for the other causes of what could cause it. I came — I don’t know whether the wheels spin — were spinning or not spinning. This idea of — I have no idea of that, I don’t know. I’ve had wheels spin a couple times but there’s a lot of factors that make wheels spin. Okay. I’m convinced that my conclusion is that the machine was jambed in the position where it couldn’t go forward and the energy was still going to the machine in first gear and it overheated and burnt that coil. There’s just a spring in there is what it is. I looked at that chute, and as soon as I saw I said oh, my God, why didn’t they cut the chute off, or why didn’t they do something with this? Mark should have. I mean it was his job, he was rehabbing an area that was not under — that he was — he was establishing a new workplace, it was his job. He had been reconditioning the track, going to that particular spot, cleaning debris out of the way. You know, going back and forth in different jobs. There was never any attempt by anyone to conceal the overhang. All of the supplies were — for barriers, hazards were on company property. And as Jonathan testified we have other types of overhead barriers, not chutes. We have a lot of them in the mine. We flag them and put markings on all of them. The conclusion I came up with was really in the autopsy, and in the doctor’s statements that he was wedged in there. They thought there was so much power that he would continue down, that the train would continue down beyond in the tracks because it was similar of a car accident in 25 miles an hour. I want to comment on the speed. Mr. Cain and others have testified that the trains can go up to 25 miles an hour. No way. I absolutely refute those, any allegation or suggestion it can go 25 miles an hour. You can walk behind a train, six to eight miles an hour, maybe four. Anybody who would be driving a train that fast would no longer be working at the mine. When I asked Jonathan for a report he never gave me a written report. Jonathan would not give me a written report. But I stayed in contact with him during the times. I want to mention that I noticed today that both Jonathan and Vince became unhealthily emotional at some point today in their testimony. There are no other chutes on the 1700 level that extend in to become a hazard, that’s a fallacy, none. An inspection would clear that in a minute. If there were — to assume that that’s true, and there was some pattern here, if you were to assume that was true you would have to assume that all inspectors over the last years were incompetent. What I found out about Mark’s frame of mind concerned me a great deal when he came to work. It was obvious from the interviews that he was — had other things on his mind. I’ll testify that we have a policy of hanging your troubles on a hook outside before you go in the portal, and also that the men are to start thinking about mining when they pass through the gate. And it’s obvious that Mark was not in a good frame of mind for being a safe miner on November 6th. I don’t know if it’s entered into evidence but the reports all indicate that he lit a cigarette, that it was burnt down. He was talking to Vince at some point. It’s obvious that he was not looking at the chute. I’d like to explain the nature of the injuries, too. The injuries were to the left side of the head and the right side of the head. There are no noted injuries on the forehead. When he started the train he would be within three feet from it. He could not possibly have gotten on that train and started it and driven it if he had been looking at where he was going. It’s customary for trammer operators to sit sideways, because most train operators that I know are constantly looking back at their load, looking up where they’re going, looking back at your load, you’re looking up at where you’re going. So the safety in tramming is that you don’t sit looking the direction you’re going, because the direction of what’s behind you, if you are pulling a load, is just as important as where you’re going. At least at the Sixteen to One it is because we have very narrow drifts. We have some places of heavy timber. We have a lot of clearance issues where trains actually rub against some timbers. So the operator is constantly looking forward, looking back. And that’s why these particular small trammers are the types of trains that work so well at this particular mine. I found absolutely no record that the locomotive had a defect. I think that the sense — I think that the mine operators and the miners are the ones that are supposed to operate the mine, and the policies that we had in this small mine of immediately tagging out a piece of equipment, fixing it yourself if you could, that presumes that you’re task trained to do it and you have the skills to do it. There’s a presumption there. And if you can’t do it I thought it was clear that you, in all of what I’ve read, and policies, that you call someone, you tag it out or fix it yourself. The train itself was old. It was bought by the company in the general purchase of the assets of Kanaka Creek Joint Venture in June of 1991, the best of my knowledge. We have a lot of old equipment, drills, slushers, trammers, so there was nothing unique or out of the way or extraordinary about having an old train, an old piece of equipment that’s somewhat tired. That’s in response to the interrogatory number 19. ( 429, L 7 to P 433, L 25)
Prosecutor jumps into a new theory, heretofore not raised by his client or him. It has not been raised because MSHA knows the circumstances at the Sixteen to One mine do not support the contention that a lead miner is a part of management. The following conditions must be in place for the Secretary to even inquire whether an employee is management: must be able to hire or fire employees; extra pay; designate or change the work place; no foreman or manager on mine site to report to. Lead miners are identified throughout the mining industry, including the Sixteen to One Mine. The prosecutor’s liberty with the rules is inexcusable.
Prosecutor fails to inquire into this subject during the two days of hearing. Investigators fail to inquire into the subject during their investigation. Prosecutor concocts its allegations based upon an opening statement by Miller.
“You Honor, since I’m going to testify, would you mind swearing me in at this time?” The Court, ”Well, no, because this is an opening statement.” (P 11, L 8-11).
This is the opening that Prosecutor jumped on to create an untruthful scenario. The following remarks are in Miller’s opening statement: (P 11, L 14).
1. A lead miner is the one responsible to identify and fix any safety issues in his heading.
2. A lead miner does not have any management or foreman capabilities.
3. Pay scales are established for experience and skills. All lead miners earn more than a Miner I or Miner II.
4. I don’t know exactly if Vince was paid more or less than Mark.
5. The Court: “But Vince Kautz was above Mark Fussell?” Answer, “No.” The Court, “Who gave the order to these persons, they would not give orders to each other. Answer, “They would give orders to each other, because we encourage everyone at the mine to have an opinion. But, if there were an ultimate responsibility it would be Mark.”
Jonathan Farrell was the mine manager. (P 363, L 23). The lead miner “reports directly to the underground foreman or the mine manager. In this case, I was both.” (P 366, L 25-27).
Reaction to the Prosecutor’s Brief