OSHA report: Faulty information aided in firefighter's death

In this January 2019 file photo, firefighters stand at attention in front of Central Fire Station as the body of Lt. Eric Hosette returns to Clinton following an autopsy. The Occupational Safety and Health Administration issued citations and penalties to ADM and Bill Whitter’s Construction following an investigation. Hosette’s wife, Kelly, and injured firefighter Adam Cain have filed suit against ADM and Whitter’s Construction.

CLINTON — To recover more than $500,000 the City of Clinton paid for medical expenses for firefighters Eric Hosette and Adam Cain following a January 2019 fire, City Attorney Patrick J. O’Connell filed a lien against any money awarded to firefighters Eric Hosette and Adam Cain in civil lawsuits.

O’Connell filed a notice of lien April 19 in the civil case filed by Hosette’s wife, Kellene, and Cain against Archer Daniels Midland Company, Bill Whittier’s Construction Co. and Industrial Services, LLC.

The notice says that at the time Cain and Eric Hosette sustained injuries alleged in the case, they were employed by the City. Under Iowa Code, the city is required to pay all hospital, nursing and medical attention expenses incurred by its firefighters due to injuries sustained in the line of duty, up to the extent the costs are not covered by another source, the notice says.

The city paid over $527,000 to cover Cain’s medical treatment and over $24,000 for Hosette’s unsuccessful medical treatment, the notice says. The City’s expenses totaled more than $551,000.

“In virtue of its payment for these expenses, the City has a subrogation interest and lien against any jury award or settlement funds received by Plaintiffs from this lawsuit in the amount of $551,473.86,” the notice says.

Kellene Hosette is suing under the Wrongful Death Act, asserting that her husband’s death resulted from the defendants’ negligent acts and omissions subsequent to the arrival of fire department personnel the day of the fire and resulting explosion.

Hosette is seeking judgment in connection with her husband’s pain and suffering and medical expenses and her loss of consortium as his spouse.

Cain is also accusing ADM and BWC of negligence. He is seeking a judgment based on his pain and suffering, loss of body function, lost wages, and medical charges as well as future pain and suffering, function loss, lost wages and medical expenses.

ADM filed an answer, affirmative defenses and jury demand. ADM asserts a dozen affirmative defenses including a claim that the alleged injuries were not proximately caused by the acts or omissions of ADM or any person from whom ADM is legally responsible.

ADM’s answer contends the plaintiffs’ alleged injuries were the sole proximate cause of the conduct of third parties for which ADM is not legally responsible, the result of unforeseen legal intervening circumstances or the result of such an unusual and extraordinary display of nature that could not have been expected under normal circumstances.

The answer claims that Eric Hosette and Cain voluntarily undertook conduct that led to the injuries with knowledge of risks, dangers and hazards. Their injuries were caused by the same peril to which they were responding in their roles as firefighters and were a natural consequence of a risk of their employment.

The answer also contends the plaintiffs have recovered compensation for their alleged injuries from a collateral source.

Bill Whitters Construction Co. and BWC Industrial Services, LLC, also filed an answer, affirmative defenses and jury demand. Its answer alleges that Bill Whitters Construction Co. was never on site, has no employees and could not be negligent or breach any duty.

Whitters Construction says the plaintiffs’ claims are barred by assumption of the risk and as a duty of employment and because they were responding in their roles as firefighters. The answer also alleges the plaintiff has failed to assert a claim upon which relief may be granted.

A jury trial is scheduled for September 2022.

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