Filed: 7/8/2020 1:40 PM Clerk Allen County, Indiana NS STATE 0F INDIANA IN } THE ALLEN SUPERIOR COURT } SS: COUNTY OF ALLEN CAUSE NO.: } 02D01-2007-CT-000344 Allen Superior Court 1 TYLER TOMPKINS, CLAIRE through his Legal Guardian, TOMPKINS, and CLAIRE TOMPKINS, } } Individually i }TRIAL BY JURY DEMANDED Plaintiffs, -vs— } HERRENKNECHT TUNNELLING SYSTEMS USA, INC. and i SHAMBAUGH & SON, L.P., } } Defendants. } COMPLAINT FOR DAMAGES Come now the Plaintiffs, Tyler Tompkins, through his legal guardian, Claire Tompkins, and Claire Tompkins, Individually, (hereinafier collectively as “Plaintiffs” or “Tyler” and “Claire,” respectively), by counsel, Robert J. Boughter ofBOUGHTER SINAK, and Timothy F. Devereux of WAGNER REESE, LLP Defendants, Herrenknecht Tunnelling Systems collectively as “Defendants” or “Herrenknecht” USA, Inc. and for LLC and Stephefi M. Wagner their cause and Shambaugh & of action against the Son, L.P. (hereinafter and “Shambaugh” respectively ) allege and state as follows: I. PARTIES 1. Meda Pass, 2. At all relevant times herein, Tyler and Claire were husband and wife and resided at 3 606 Fort Wayne, Indiana 46809, County ofAllen, with On May 27, 2020, Claire catastrophic injuries Tyler suffered their was appointed temporary 0n April 16, minor children. legal guardian over Tyler due t0 2020, that have rendered him completely incapacitated, both physically and mentally. 3. The Defendant, Herrenknecht Tunnelling Systems USA, Inc., is a Foreign For-Profit Corporation, authorized to d0 business in the State of Indiana, withits principle place of business located at 1613 the leading 132“ Ave. premium E., Ste. 200, Sumner, Washington, 98390. Herrenknecht holds itselfout as supplier 0f comprehensive technical solutions in mechanized tunneling for underground infrastructure proj cots around the world. The Defendant, Shambaugh 4. & do business in the State 0f Indiana With Son, L.P. its is a Foreign Limited Partnership authorized t0 principal place 0f business headquartered at Opportunity Drive, FOIT Wayne, Indiana 46825. Shambaugh holds plumbing installation, a leading constmction itself out as engineering services company, specializing in design/build services, LEED, 7614 mechanical, electrical, fire protection services, food process engineering, and energy solutions. II. STATE COURT JURISDICTION Plaintiffs restate paragraphs 1-4 5. forth herein in paragraph 5 0f Part II at Fort Plaintiffs reside in the parties of this cause is Fort Wayne, Indiana, Glasgow Avenue, Fort Wayne, were involved in said project and County 0f Allen. proper in Allen County pursuant t0 Tn'al Rule 75(A)(1)(2)(4) and (5). Allen County, Shambaugh’s headquafiers and principal place 0f business is T0 wit, located Allen County, and the subject incident occurred in Allen County. 8. all is Project located at 705 Further, both Defendants Shambaugh’s principal place 0f business Venue fully set rise t0 the allegations against Defendants, described infra, Wayne’s Deep Rock Tunnel Indiana 46803, County 0f Allen. in 0f Plaintiffs’ Complaint as though 0f Plaintiffs’ Complaint. 0f action because Tyler’s incident giving 7. I The Allen County Superior Court has personal jurisdiction over 6. occurred 0f Part The Allen County Superior Court has subject matter jurisdiction over this cause because 0f Plaintiffs’ claims herein are Indiana state law claims and there 9. Federal diversity jurisdiction does n_0t exist Defendant, Shambaugh, are citizens 0f the State 0f Indiana. is 110 federal question implicated. in this cause because Plaintiffs and the See Hertz Corp v. Friend, 559 U.S. 77 (2010)(F01‘ purpose 0f federal diversity jurisdiction, a corporation’s place 0f residence place 0f business; complete diversity between all Plaintiffs and all is its principal Defendants must exist t0 invoke federal diversity jurisdiction). III. THE INCIDENT-COMMON TO ALL COUNTS 10. Plaintiffs restate set forth herein as 11. paragraphs 1-9 of Parts paragraph 10 of Part On III April 16, 2020, Tyler I and II 0f Plaintiffs’ Complaint as though fully 0f Plaintiffs’ Complaint. was working within the course and scope 0f his employment with Salini Impregilo SPA, Inc./T11e Lane Construction Corporation as a bottom lander stationed bottom 0f the Pump Station Shaft Deep Rock Tunnel 12. Project, in the underground tunnel located at the City ofFort the at Wayne Utilities’ 705 Glasgow Avenue, Fort Wayne, Indiana 46803, County 0f Allen. 011 said date, as Tyler was working, an explosion 0f high—pressure slurry occurred and highly pressurized Sluny, as well as possibly piping and/or piping fragments, forcefillly struck Tyler resulting in catastrophic injuries to his person that have rendered him totally incapacitated, both w physically and mentally. IV. TYLER TOMPKINS’ GENERAL NEGLIGENCE CLAIMS AGAINST HERRENKNECT TUNNELLING SYSTEMS USA, INC. AND SHAMBAUGH & SON. L.P. 13. Plaintiffs restate paragraphs 1-12 ofParts fully set forth herein as 14. On 01' paragraph 13 0f Part IV, Count otherwise placed in the stream 0f component and III 0f Plaintiffs’ Complaint as though 0f Plaintiffs’ Complaint. before the incident 0f April 16, 2020, the Defendants designed, produced, manufactured, programmed, distributed, sold, related I, I, II parts commerce built, assembled, installed, maintained, tested and/or the Tunnel Boring Machine and systemsrincluding but not limited (hereinafter t0 all piping, “TBM”) and its plumbing, valves, electrical systems, and the Programmable Logic Controller (hereinafter “PLC”), tunneling operations 0f F011 Wayne’s As 15. Deep Rock Tunnel t0 be used for the Proj ect. outlined supra, on April 16, 2020, an explosion ofhigh-pressure slurry occurred and highly pressurized slurry, as well as possibly piping and/or piping fragments, forcefully struck Tyler resulting in catastrophic injuri es to his person that have rendered manufacture, assemble, component parts components, valves and install, test, build, come into PLC 0f the subject tunneling system, t0 protect 611d users Which (a) in t0, TBM design, and accordance with industry standards 0f the tunneling equipment and/or persons TBM and its related equipment, systems, and component duties include but are not limited t0 the following: A duty t0 protect users and/or persons working the tunneling operations, including Tyler, from the dangers associated with the use 0f the subject TBM and its related t0 the piping, A duty t0 keep the subj ect TBM and its related equipment, including but not limited plumbing, valve systems, electrical components, and PLC safe for the end users and persons, including Tyler, working the tunneling operations and/or t0 the piping, coming (C) into contact with said equipment and/Or systems. A duty t0 eliminate by design hazards in the subj ect TBM and its related equipment, including but not limited t0 the piping, plumbing, valve systems, electrical components, and PLC. (d) its the piping, plumbing, electfical equipment, component parts and systems, including but not limited plumbing, valve systems, electrical components, and PLC. (b) t0 contact with 0r are near said equipment, including Tyler, from injury during the expected operation, use, and/or maintenance 0f the parts, produce, program, and maintain the subject and systems, including but not limited and other regulations and laws designed that totally incapacitated. The Defendants, Hen‘enknecht and Shambaugh, owed Tyler a duty 16. related him A duty t0 design, manufacture, install, test, assemble, build, program and maintain TBM and its related equipment, component parts, and systems, including but not limited t0 the piping, plumbing, valve systems, electfical the subject components, and PLC so as t0 prevent injuw t0 the end users and persons working the tunneling operations and/or systems. coming into contact with said equipment and/or (6) A duty t0 warn 0f the dangers 0f the subject component TBM and its related equipment, parts and systems, including but not limited t0 the piping, plumbing, valve systems, electfical Components, and PLC. (f) A TBM duty t0 provide proper installation and testing 0f the and its related equipment, component parts, and systems, including but not limited t0 the piping, plumbing, valve systems, (g) A electrical components, and PLC. duty t0 provide proper instruction and wamings regarding installation, testing, use, and maintenance 0f the TBM and its related equipment, component parts, and systems, including but not limited to the piping, plumbing, valve systems, electrical components, and PLC. (h) A duty t0 guard the user and/or persons, including Tyler, coming into contact with the TBM and its related equipment, component parts, and systems, including but n01: limited t0 the piping, plumbing, valve systems, electrical components, and PLC, from hazards associated With the tunneling system operation, use and maintenance. (i) A duty t0 ensure that all TBM safety devices 0f the subject and its related equipment, component parts and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and PLC are in proper working order and functioning in the (j) A manner the safety systems were designed t0 function. duty t0 ensure that Defendants’ employees 0r persons contracted t0 assemble, install, test, build, design, program, and maintain the subject TBM and its related equipment, component parts and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and PLC were properly trained and had the wherewithal t0 ensure that said equipment and systems were properly set (k) up in compliance with the manufacturers’ express instmctions and warnings and in accordance with industry standards, laws and regulations. A duty t0 design out foreseeable dangers associated with the subject component TBM and its and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and PLC. related equipment, (1) A duty t0 its parts design out and/or guard against foreseeable misuse 0f subj ect related equipment, component parts A duty t0 properly and and systems, including but not limited the piping, plumbing, valve systems, electrical components, and (m) TBM design, build, manufacture, install, test, t0 PLC. program and maintain equipment, component ensure safe operation of the TBM and its related and systems, including but not limited t0 the piping, plumbing, valve systems, and electm’cal components, t0 protect Tyler and people working the tunneling the PLC t0 parts operations. 17. The Defendants, Herrenknecht and Shambaugh, breached the foregoing duties and were negligent, including but not limited t0 the following ways, with respect t0 the design, manufacture, assembly, installation, testing, building, production, programming and maintenance 0fthe subj ect and its related equipment, plumbing, (a) electrical component parts components, valves and The plumbing, and systems, including but not limited PLC TBM t0 the piping, 0f the subject tunneling system: piping, valves, and/or PLC were defective and unreasonably dangerous. (b) (c) The design 0f the plumbing, piping, valve systems, electrical systems and/or PLC including the progxamming 0f the PLC failed t0 p10pelly isolate energy soulces dumng maintenance operations. The defective design 0f the PLC, plumbing, valve systems, electrical systems, and/or piping systems allowed for critical safety features to be bypassed, the act 0f which posed an unreasonable risk 0f hann t0 persons working the tunneling operation, including Tyler, which was foreseeable t0 said Defendants, and for which said Defendants should have protected and warned against. (d) The PLC was defective and improperly designed, programmed, installed, tested, and/or maintained (e) by said Defendants. The PLC programming was defective and unreasonably dangerous because energy sources were :1ng isolated when the slurry system was shut down t0 perform routine maintenance 0r otherwise. (t) Defendants failed t0 provide proper wamings and instructions regarding safe Operation 0f the and its related equipment and systems, including but not TBM limited t0 the piping, plumbing, valve systems, electrical systems, PLC, and related safety systems. (g) Defendants failed t0 provide proper warnings regarding the risk 0f high-pressure slurry and the manner in which t0 safely remedy such problem t0 avoid serious injuly and/or death. (h) Defendants failed t0 design, manufacture, build, install, test and/or program the TBM and its related equipment and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and/or without causing an explosion 0f high—pressure sluny. (i) PLC t0 withstand pressure Defendants were negligent in the design, manufacturing, installation, testing, assembly, constmction, programming, and/or maintenance 0f the TBM and its related equipment and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and/or PLC. U) Defendants failed program the t0 design, build, manufacture, install, test, assemble, equip and TBM and its related equipment and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and/or PLC, with proper guarding and safety mechanisms. (k) Defendants failed t0 adhere t0 industry standards and other regulations and laws with respect t0 the design, manufacturing, assembly, programming and maintenance 0f the TBM and its related equipment and systems, including but not limited to the piping, plumbing, valve systems, electrical components, and/or (1) PLC. Defendants designed, manufactured, assembled, programmed, marketed, sold, maintained and/or otherwise placed in the stream 0f commerce the TBM and its related equipment and systems, including but not limited t0 the piping, plumbing, valve systems, electrical components, and/or PLC in a condition that was defective and unreasonably dangerous. (m) Defendants could have manufactured, designed, built, constructed, assembled, programmed and/or maintained the TBM and its related equipment, component parts and systems in such a way t0 prevent injuries, including the mechanism 0f injury that Tyler sustained, but negligently failed t0 do installed, tested, so. AS 18. negligent acts a direct andproximate cause 0fthe breach 0fthe and omissions as outlined supra, Tyler suffered his person, including a severe traumatic brain injury, that duties owed t0 Tyler and resulting permanent and catastrophic have rendered him injuries t0 totally physically and mentally incapacitated and causing him to incur emergency medical, hospital, diagnostic, surgical, therapeutic, pharmaceutical, and other medical expenses; Tyler also suffered and will continue t0 suffer physical pain, mental suffering, terror, fright, humiliation, loss 0f enjoyment 0f life, permanent scarring and disfigurement; Tyler also incurred 1'elated lost wages, loss 0f earning capacity, and loss of employment- benefits; Tyler will incur ongoing and future medical expenses, ongoing and future long-term care expenses, and handicapped housing and related expenses; Tyler also suffered a loss 0f sexual relations, and other injuries and damages 0f a personal and pecuniary nature. WHEREFORE, RobeIT 0f J. Systems USA, him ofBOUGHTER SINAK, LLC and Stephen M. Wagner and Timothy F. Devereux Boughter WAGNER Tyler Tompkins through his legal guardian, Claire Tompkins, by counsel, REESE, LLP, Inc. for his injuries relief deemed just seeks judgment against the Defendants, Herrenknecht Tunnelling and Shambaugh & Son, L.P., individually, in an amount sufficient t0 compensate and damages, for the costs 0f this action, for pre—judgment interest, and all further and proper in the premises. V. COUNT II TYLER TOMPKINS’ CLAIMS PURSUANT T0 INDIANA PRODUCTS LIABILTIY ACT AGAINST HERRENKNECT TUNNELLING SYSTEMS USA, INC. AND SHAMBAUGH & SON. L.P. 19. though fully set 20. its Plaintiffs restate fOfih herein paragraphs 1-18 of Parts as paragraph 19 0f Part V, I, II, III, Count II, and IV 0f Plaintiffs’ Complaint as 0f Plaintiffs’ Complaint. Hen'enknecht and Shambaugh are “sellers” and/or “manufacturers” 0f the related equipment, systems and component valve systems, electrical components, and TBM and/or parts, including but not limited to the piping, PLC plumbing, within the meaning 0f those terms as defined by I.C. 34-6-2-136 and LC. 34-6-2—77. 21. component Tyler was a “consumer” 0r “user” 0f the parts, TBM and 'its related equipment, systems, and including but not limited t0 the piping, plumbing, valve systems, electrical components, and PLC, within the meaning of those tenns as defined by LC. 34-6-2-29 and LC. 34~6— 2-147. 22. The TBM and its related equipment, systems, and component limited t0 the piping, plumbing, valve systems, electrical components, and “products” within the meaning of that term as defined by LC. 34-6~2—1 14. parts, including but not PLC as described herein are 23. TBM The and its related equipment, systems, and component limited t0 the piping, plumbing, valve systems, electrical components and parts, including but not PLC, which were designed, manufactured, programmed, distm'buted, installed, tested, assembled, built and sold by Defendants as described herein ware “unreasonably dangerous” as defined by LC. 34-6-2-146 and LC. 34-20-4-1. 24. Tyler suffered “physical harm” within the meaning 0f that term as defined by LC. 34—6- 25. The 2-105. TBM and its related equipment, systems, and component limited t0 the piping, plumbing, valve systems, electrical components and manufactured, assembled, built, installed, tested, programmed, parts, including but not PLC, which were designed, distributed, and sold by Defendants as described herein, are “defective products” as defined by LC. 34-20—4-1 and I.C. 34—20-4—3. 26. The TBM and its related equipment, systems, and component limited t0 the piping, plumbing, valve systems, electrical components and manufactured, assembled, built, installed, tested, programmed, parts, including but not PLC, which were designed, distributed, and sold by Defendants as described herein, were expected t0 and did reach Tyler Without substantial alteration in the condition in which it 27. was sold Tyler 01' is placed in the stream 0f commerce. in the class 0f persons that Defendants reasonably foresaw, 01‘ should have reasonably foreseen, as being subject t0 the harm caused by the defective condition 0f the subj ect and its related equipment, systems, and plumbing, valve systems, 28. electri cal Tyler did not component TBM parts, including but not limited t0 the piping, components, and PLC. know 0f the defective condition 0f the TBM and its related equipment, systems, and component parts, including but not limited t0 the piping, plumbing, valve systems, electrical components, and PLC, and was not aware 0f the danger caused by the defective condition. 29. Tyler did not misuse the subj ect parts, including but not limited to the piping, the alternative, misuse 0f the subj ect 0r, in parts, including but not limited t0 the piping, by Tyler was reasonably foreseeable 30. t0 TBM 01‘ its related equipment, systems, plumbing, valve systems, TBM and its electrical components, and related equipment, systems, plumbing, valve systems, electrical and component PLC and component components, and PLC Defendants. Defendants, Herrenknecht and Shambaugh, are strictly liable in tort t0 the Indiana Product Liability Act, LC. 34-20-1-1. er seq, because the subject Tyler pursuant t0 TBM and its related equipment, systems, and component parts, including but not limited t0 the piping, plumbing, valve systems, electrical components, and (a) (b) 3 1. PLC were conveyed t0 another party in a condition: Not contemplated by reasonable expected users 0r consumers 0f the product; and Unreasonably dangerous t0 the expected user 0r consumer when used expected ways 0f handling 01' consumption. As a direct in reasonably and proximate result 0f Defendants’ actions and inactions described herein, Tyler suffered pennanent and catastrophic injuries t0 his person, including a severe traumatic brain injury, that have rendered him emergency medical, totally physically and mentally incapacitated and causing him hospital, diagnostic, surgical, therapeutic, phannaceutica], t0 incur and other medical expenses; Tyler also suffered and Will continue t0 suffer physical pain, mental suffering, terror, fright, humiliation, loss 0f enj oyment 0f life, permanent scarring and disfigurement; Tyler also incurred lost wages, loss 0f earning capacity, and loss 0f employment—related benefits; Tyler Will incur ongoing and future medical expenses, ongoing and future long-term care expenses, and handicapped housing and related expenses; Tyler also suffered a loss of sexual relations, and other injufies and damages 0f a personal and pecuniary nature. WHEREFORE, Robert J. Tyler Tompkins through his legal guardian, Claire Tompkins, by counsel, Boughter 0f BOUGHTER SINAK, LLC and 10 Stephen M. Wagner and Timothy F. Devereux 0f WAGNER Systems USA, him REESE, LLP, and Shambaugh Inc. for his injuries relief deemed just seeks judgment against the Defendants, Herrenknecht Tunnelling & Son, L.P., individually, in an amount sufficient to compensate and damages, for the costs 0f this action, for pre-judgment interest, and a1] further and proper in the premises. VI. COUNT III CLAIRE TOMPKINS’ LOSS 0F CONSORTIUM CLAIM AGAINST HERRENKNECT TUNNELLING SYSTEMS USA. INC. AND SHAMBAUGH & 32. as though 33. Plaintiffs restates fully set At fofih herein all SON, paragraphs 1-31 0f Parts as L.P. III, I, II, paragraph 32 0f Part VI, Count relevant times herein, including 011 IV, and III, V 0f Plaintiffs’ Complaint 0f Plaintiffs’ Complaint. and before April 2020, Tyler and Claire 16, were husband and wife. 34. As a direct and proximate result occasioned by the Defendants’ negligence and V 0f Plaintiffs’ Complaint, Tyler provided t0 Claire prior is 0f the catastrophic strict liability as n0 longer able t0 the subject incident injuries Tyler has outlined supra under Parts t0 provide the love, care of April suffered, III, 1V and and affection he ably 16, 2020. Likewise, Claire asserts a derivative claim for loss 0f consortium against Herrenknecht and Shambaugh and seeks all damages she is afforded under Indiana law. WHEREFORE, Claire Tompkins, by LLC and Stephen M. Wagner and Timothy F. counsel, Robert Devereux 0f Boughter 0f BOUGHTER USA, Inc. and Shambaugh amount suffi cient t0 compensate her for her loss 0f consortium and all & deemed just and proper in the premises. 11 Son, L.P., other afforded t0 her under Indiana law, for the costs 0f this action, for pre-judgment interest, and relief SINAK, WAGNER REESE, LLP, seeks judgment against the Defendants, Herrenknecht Tunnelling Systems individually, in an J. damages all further Respectfully submitted: BOUGHTER SINAK, LLC Robert J. Boughter, #23512—53 5150 West Jefferson Boulevard Wayne, IN 46804 Te]: 260-420-4878 Fax: 260—420-0600 Fort E—mail: robert@b0ughtersinak.com Attorneyfor Plaintzjj‘lv & WAGNER REESE, LLP /s/Stephen M'. Wagner Stephen M. Wagner, #1 8248—49 Timothy F. Devereux, #25250-49 11939 North Meridian Street Carmel, Indiana 46032 Tel: 3 1 7-569—0000 Fax: 317-569-8088 E-mail: swagnerébiniurvattorncysxom Email: tdevereuxflbwagnen‘eese.00m Attorneysfor Plaintiffs 12 JURY DEMAND Come all 110w the Plaintiffs, by counsel, and demand trial by jury against Defendants on all issues set forth in this cause 0f action. Respectfully submitted: BOUGHTER SINAK, LLC Robert J . Boughter, #23 5 12-53 West Jefferson Boulevard Fort Wayne, IN 46804 5 I 50 Tel: 260—420—4878 Fax: 260-420-0600 E—mail: 1'0bert@b0ughtel'sinal<.001n Attorneyfor Plaintiff? & WAGNER REESE, LLP Av/Stephen M Wagner Stephen M. Wagner, #1 8248-49 Timothy F. Devereux, #25250—49 11939 North Meridian Street Carmel, Indiana 46032 Tel: 317—569-0000 Fax: 317-569—8088 E-mail: swagner®iniuryattomevscom E—mail: tdevereux@wagznerreese.com Attornqysfor Plaintififv 13