GOP dairyman’s family farm held responsible for California farmworker’s amputation
Former Rep. David Valadao’s family dairy is asking a California appeals court to reconsider part of a recent jury verdict that held the farm mostly responsible for a 2016 accident that severed an employee’s hand.
His dairy’s worker’s compensation insurance carrier had been trying to limit its potential financial losses from an incident in which employee Carlos Martinez Ocampo’s arm was caught in an auger and cut off below the right elbow.
A Kings County jury in October found that Valadao Dairy bore the greatest share of responsibility for the incident, assigning 80 percent of fault to the dairy, while the manufacturer of the equipment, Tulare-based U.S. Farm Systems, was deemed 20 percent responsible.
Ocampo lost part of his arm on Oct. 16, 2016, about three weeks before the November 2016 general election in which Valadao, a Republican from Hanford, won re-election for a third term in the House of Representatives.
Valadao lost his 2018 re-election bid but is campaigning to reclaim the seat in this year’s election, aiming to unseat Rep. TJ Cox, D-Fresno.
Valadao was not involved in the farm’s day-to-day operations at the time of the accident. Years earlier, before he was elected to Congress, Valadao had a role in purchasing the equipment. He was called as a witness in the civil trial and pressed in court about the dairy’s employee training.
Ocampo was injured while cleaning a manure separator, which is used to create cow bedding from manure. The machine was turned on while Ocampo was cleaning it, and he fell and lost a portion of his right arm below his elbow in a large drill called an auger.
The California Division of Occupational Safety and Health (CalOSHA) cited and fined Valadao Dairy for safety violations.
One was that “the employer did not provide training and instruction for the employee who was injured operating the waste separator at the dairy.”
The second, more serious violation was for failing to have guardrails around the elevated platform where Ocampo was standing as he scraped manure solids that had clogged a screen near the auger.
CalOSHA initially proposed to fine the dairy $13,275 for the violations; the penalty was later negotiated down to $6,450, which was paid in May 2017.
When asked if Valadao believed the farm shared any responsibility for the accident, his campaign characterized Ocampo’s injury as a “tragic accident” and said Valadao wasn’t interested in pointing fingers. Neither a lawyer for Valadao Dairy nor a lawyer for the dairy’s insurance company returned multiple requests for comment.
Valadao’s dairies
Valadao today is an employee of Valadao Dairy, according to his campaign, where he earns $30,000 per year according to his latest financial disclosure.
He had an ownership stake in the dairy and in two other businesses owned by his family, Triple V Dairy and Triple V Cattle. He dissolved his ownership stake in the companies in 2017 and 2018, and last year filed for bankruptcy protection. Valadao earned between $6 million and $30 million from Valadao Dairy while he was a congressman, between 2012 and 2017.
A search of state and federal OSHA databases shows that the only inspections at Valadao Dairy were related to the Ocampo accident. Employers are only required to report serious injuries or fatalities, a CalOSHA spokesman said.
Ocampo, a Mexican immigrant who moved to California to work in the dairy industry, was 29 when the accident happened. He had worked at the dairy since May 2015, court records show.
His attorney estimated that over Ocampo’s lifetime the injury would reduce his earning potential by more more than $1.1 million. Future medical bills – including maintenance and periodic replacement of a prosthetic arm and hand – represent another $1.7 million in expenses, according to court documents.
Ocampo in 2017 filed a product liability lawsuit against the manufacturer of the manure separator, U.S. Farm Systems.
“On the day of the incident, Ocampo was unclogging the machine as he had been trained,” Ocampo’s attorney, Warren Paboojian of Fresno, wrote in his opening trial brief. “However as he climbed down the step ladder (with the scraper in one hand), from the raised portion of the machine, his foot slipped on the wet stairway, causing him to lose his balance and fall to the right of the step ladder.”
“As he fell, his right hand landed on the open, unguarded auger,” Paboojian added. “As a result, his right hand was cut off.”
In September 2018, court records show, Ocampo and Paboojian reached a tentative settlement of their claim against U.S. Farm “for a sum not to exceed $4 million.”
Valadao Dairy’s worker’s compensation insurance company, Zenith Insurance, also filed a lawsuit against U.S. Farm, seeking reimbursement for what it has paid, and will pay in the future, in benefits for Ocampo. That’s the case that was heard by a jury in the fall.
Zenith argued that the manufacturer should have put guards on the auger when it was installed if it considered the equipment to be dangerous.
“We believe, Zenith believes and Valadao Dairy believes that the reason this horrific accident happened was because U.S. Farm Systems put onto Valadao property a designed, constructed, and sold what amounted to an experimental, never tested, one-off machine,” Jeff Williams, Zenith’s attorney, told the jury.
Who trained the worker?
In a transcript from the October trial, Valadao says that he bought the manure separator in 2000 from U.S. Farm. His congressional campaign told The Fresno Bee that Valadao purchased it through a contractor.
Reajan Houle, the representative from U.S. Farm Systems, testified that he told David Valadao in 2002 the power should be turned off whenever a worker went up on the top platform. That’s where Ocampo was was when he fell.
“I am a hundred percent certain of that,” Houle said. He said he repeated that to David Valadao when a second auger was installed in 2005, and told him how “dangerous” the machine could be.
David Valadao denied he had been told that. He also said that they typically left training up to the insurance company, and that he had never trained employees personally.
The message to turn the auger off may have never gotten to Ocampo. According to court transcripts, the Valadaos could not produce training records for the manure separator, which are required by law.
Ocampo in court said he was never formally trained on the machine, although a dairy supervisor in an August deposition said he had instructed Ocampo on safety precautions, including telling him to turn it off while cleaning it.
OSHA has a specific name for the need to turn off a machine and make sure it stays off before cleaning it, called “lock out, tag out” procedures. Ocampo said he had never heard of “lock out, tag out” and Miguel Valadao, David Valadao’s brother and operations manager at the dairy, said that procedure was not in place at their farm when the incident occurred.
During court testimony, an attorney asked if David Valadao understood it was the employer’s responsibility to implement that protocol.
“Well, yeah, today,” David Valadao responded.
Political bias?
Outside of court, the state Workers Compensation Appeals Board is considering a claim from Ocampo. The complaint alleges that Valadao Dairy committed “serious and willful violations” of basic safety requirements at the dairy, Paboojian said.
Kings County Superior Court Judge Donna Targer on Oct. 30 delayed a second part of the Zenith insurance trial, putting the case on hold until after the state Workers Compensation Appeals Board determines future benefits to be paid to Ocampo, the total value of losses sustained by the worker, and reimbursement credits to which Zenith may be entitled.
Zenith Insurance last month petitioned California’s 5th District Court of Appeal in Fresno to review Tarter’s decision to delay the trial’s penalty stage. In that petition, Zenith’s attorney Bradley Pauley wrote that the insurer has paid about $384,000 in benefits in the Ocampo case as of January 2020.
Officials with Valadao’s campaign asserted this week that Ocampo’s attorney, Paboojian, is politically biased against their candidate. Campaign finance records show that Paboojian contributed $2,700 to Cox’s 2018 campaign against Valadao, and since September has given another $4,000 to Cox’s 2020 re-election campaign.
Valadao’s campaign blamed Cox for the incident becoming public 10 months before the general election.
“It’s disappointing that TJ Cox and his allies are choosing to exploit a tragic accident for political gain, but sadly voters have come to expect these desperate attacks from their failing congressman,” said Andrew Renteria, Valadao’s campaign manager, in a statement provided to McClatchy.
Paboojian rejected any suggestion that the legal case is politically motivated. “I mean, this guy’s running for Congress and can’t maintain a safe environment for his workers?” he said. “After seeing how they ran that dairy, you’re darned right I’m a Cox supporter.”
“That guy at CalOSHA who cited them in 2016, was that political? The jury that found Valadao Dairy 80 percent liable, were they political?” Paboojian asked. “This isn’t political. I’m representing my client. This man lost his arm. I sued the manufacturer and the dairy just like any attorney would.”
This story was originally published February 11, 2020 at 11:56 AM with the headline "GOP dairyman’s family farm held responsible for California farmworker’s amputation."
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