‘Pinned and in great pain': Lawsuit, OSHA records detail death at thermoforming plant

A clear picture of Todd Shaffer's painful death in a thermoforming press at an Encore Plastics plant has emerged from both a lawsuit filed by his family and a government safety review.

The 38-year-old married father of three was at work in November 2021, clearing a jam inside a machine making plastic paint trays, when the conveyor belt suddenly activated, pinning his upper body.

"As Mr. Shaffer was clearing a plastic part, stuck in the eject conveyor, the conveyor activated, rose and began running, trapping Mr. Shaffer's head and neck," a lawsuit filed by his family in state court alleges. "Mr. Shaffer's breathing was restricted, his throat was crushed, and he went into cardiac arrest. Mr. Shaffer was found pinned and in great pain."

Shaffer, a production manager, was stuck for 18 minutes before emergency responders and fellow employees at the Cambridge, Ohio, plant could free him.

He was taken off life support at a Columbus hospital four days later, on Nov. 21, 2021. Since then, his widow, Julie Shaffer, and children have brought a lawsuit in court in Franklin County, Ohio.

Plastics News is examining Shaffer's death because the public records provide an unusually detailed look at events leading up to an industrial accident in a plastics factory.

The Shaffer lawsuit alleged his death was part of a pattern of dangerous incidents there, while the company defended itself, arguing that it hired outside safety experts to protect employees and said the lawsuit had not proven Encore's legal liability.

The death has also received extra scrutiny from the federal government. In an October court filing, Encore disclosed that the Occupational Safety and Health Administration told the company it referred its investigation to Department of Justice prosecutors for further review.

Although it's not common, DOJ can file criminal charges against companies, such as in a 2022 case against extrusion firm ABC Polymer Industries LLC in Alabama. ABC pled guilty in 2023 to willfully violating safety regulations after an employee was pulled into an extrusion line in and killed in 2017.

Neither OSHA nor DOJ responded to a request for comment, and there are no indications charges will be filed.

Encore no longer operates in Cambridge. Last year, the company, which is part of Ireland-based plastic packaging firm IPL Group, told Ohio officials it was closing the plant. A newspaper in Cambridge reported in July that the building was being sold to a local investor to become a warehouse and distribution center.

In the days leading up to Shaffer's accident, both OSHA and the family's lawsuit said the Encore factory had dangerous near misses, sometimes on the same machine that killed Shaffer. OSHA said its investigation revealed two similar incidents where workers "barely escaped injury."

In a May 24, 2022, news release, the federal safety agency said the company "ignored reports of malfunctioning equipment and near misses" and alleged Encore had improper procedures for lockout/tagout and energy control to shut down and de-energize machines.

"Our investigation found Encore Industries removed jams and performed other service and maintenance tasks with the knowledge that its inadequate and failing lockout/tagout procedures exposed its workers to the risks associated with moving machine parts," OSHA said at the time.

It proposed fines of nearly $300,000, but OSHA's website said the company is contesting the penalties and that the case remains open.

The Shaffer family's March 2023 lawsuit alleges three such "near miss" incidents, one more than OSHA.

"On the day before Mr. Shaffer's death, twice, employees were attempting to remove a jammed part in the exact same way as Mr. Shaffer on the same machine and were almost crushed, like Mr. Shaffer," the lawsuit said. "On the day of Mr. Shaffer's injury, another employee had attempted to remove a jammed part in the same way as Mr. Shaffer and was almost crushed as well."

An attorney for Encore said the company "does not comment on pending legal matters," but in court filings it made a legal defense that the facts in the Shaffer lawsuit don't rise to the "heightened" level needed to remove the case from Ohio's workers' compensation system and have liability settled in court.

"Put simply, the [complaint's] factual allegations show that Mr. Shaffer died in a tragic workplace accident," Encore said. "The Ohio General Assembly has chosen to ameliorate the consequences of such accidents through its workers' compensation system rather than through civil lawsuits."

It said the Ohio Legislature "has provided statutory immunity to employers for workplace accidents and injuries in all but the rarest of circumstances: where an employer deliberately intended to injure an employee."

"The claims against Encore are improper and cannot stand because Ohio's long-standing worker's compensation regime immunizes employers from civil liability for workplace injuries," Encore said.

The Shaffer lawsuit, however, alleges a pattern of safety failures, and it argued that they collectively do meet the intent standard in the law. It said, for example, that Encore had hired a safety consulting firm to do monthly mock OSHA inspections starting in 2017, but the lawsuit accused the company of ignoring recommended fixes.

The Shaffer lawsuit alleges that Encore "regularly removed or disabled safety guards, including interlock safety guards, to speed up production."

It said that the safety auditors identified repeated safety problems during more than four years of inspections, including one on a forklift where factory wiring was spliced to defeat a seatbelt safety interlock switch.

"The results are simply shocking," the lawsuit said. "Routinely, the [audits] would find that safety guards were missing or removed, and those guards would either not be remedied or the same condition would exist at a later inspection months later."

It alleged instances on thermoforming presses like the one where Shaffer was killed, where safety equipment was disabled.

"Each time, this resulted from a desire for increased production at the cost of employee safety," the Shaffer family lawsuit alleged. "The mock OSHA inspections were a joke — something Encore could point to that it did — but completely ignored by Encore's management."

Encore said hiring the safety consulting firm to perform mock inspections showed its intent to protect employees, and it pushed back strongly on the lawsuit, calling it short on facts on key questions.

"Here, despite plentiful rhetoric, the [complaint] fails to plead facts [italics in original] showing that Encore deliberatively removed an equipment safety guard from the trim press at issue," the company said.

"There is no factual showing that Encore deliberately removed an 'equipment safety guard' that would have prevented this tragedy," the company said. "Accordingly, plaintiffs' only remedy lies with Ohio's workers' compensation system."

As well, Encore said hiring the safety audit firm is clear evidence that it wanted employees to be safe.

"If Encore hired an auditor to check the safety of the trim press every month, then it plainly intended to protect its employees from injury," the company said.

A key part of the legal dispute centers around whether interlock safety guards on the thermoforming press — a Brown Machinery Group T-345-V trim press — were working properly on side doors and whether employees should enter through side or rear doors to get into the machine and clear jams.

The lawsuit said Shaffer entered the press through a side door, rather than rear doors that had interlocked safety guards that would automatically shut down both the press and the conveyor belt when those doors were opened.

It alleged that the side door safety guards had been removed or disabled. Otherwise, the family's lawsuit said, the conveyor would not have restarted or cycled while Shaffer was working inside the machine, crushing him.

The lawsuit said entering through rear doors slowed production. The Shaffer family and Encore sparred in court filings over how employees were instructed to enter the machine.

Clearing a jammed part by going into the press through the side door would take about a minute, while using the rear doors and their safety guards meant it would take 10-20 minutes to fully restart the machine, the Shaffer lawsuit said.

The lawsuit said Todd Shaffer's machine had been jamming up to 15 times a day; it said that information came from testimony an Encore safety official gave to investigators with the Ohio workers' compensation system. That could mean between two to five hours of downtime a day from using the rear doors to enter the machine and clear jams, the lawsuit alleged.

"Using the proper entrance through the two interlocked doors, as opposed to a side door (with guard removed) would result in the machine being down a significant amount of time, thereby reducing the 90,000-per-day output of plastic paint trays from the machine and, thus, Encore Plastics' profits," the lawsuit alleged.

But Encore responded that an allegation of profit motive does not meet the legal standard to prove liability for the company nor do the other allegations.

"Awareness of a hazardous condition is insufficient as a matter of law [emphasis in original] to allege deliberate intent to injure," Encore said. "The same is true for allegations of failure to provide adequate training and additional safety devices as well as allegations of failure to comply with state and federal safety regulations, nor do allegations of profit motive suffice to show deliberate intent to injure."

The Shaffer lawsuit, which was filed in November 2022, has been slowly working through the court.

Encore and the Shaffer family filed a joint motion in early March broadly suggesting they had reached a preliminary settlement, without giving details. It said the Shaffers agreed to drop their claims against Encore but reserved the right to refile them if a final settlement could not be reached.

Lawyers for Brown, which in 2021 became known as BMG Corp., and for Shaffer did not return messages seeking comment, and the court's online public records do not show any subsequent final settlement.

The case has proceeded against Brown, with the docket showing an early December trial date.

Brown changed lawyers in late June, however, and they filed a motion July 22 seeking a new schedule, to which the Shaffer lawyers objected.

One unresolved issue could concern an extensive rebuild that Brown performed in 2019 on the machine that Shaffer was fatally injured on in 2021 and what, if any, changes were made to safety equipment in the rebuild or after the refurbished machine was returned to the Encore.

In a June 2023 preliminary order, the judge overseeing the case, Karen Held Phipps, wrote in a summary of factual allegations that it appeared that Brown's 2019 redesign left the safety devices in working order.

"As part of the redesign, Brown redesigned and implemented interlock safety guards on each side door, which were designed to prevent both the press and the conveyor belt from operating if the doors were opened," Phipps wrote. "Brown completed testing on the interlock safety guards after the redesign and confirmed that they were in proper working order."

In her order, she also rejected an argument about the law that Encore had made — that the safety interlock device on the side door that Todd Shaffer entered the machine through was not legally an "equipment safety guard" under Ohio law. She ruled it was an equipment safety guard, writing that it was different from a free-standing physical barrier or personal protective item "that was only within the control of Todd."

That legal distinction could matter for jury instructions, the Shaffer lawsuit suggested.

If a workplace safety device is legally an equipment safety guard and it had been altered, then Shaffer's lawyers argued a jury could assume an intentional action on Encore's part.

Phipps' order noted that Shaffer's lawsuit alleged that Encore at some point "either removed the physical interlock device or removed the computer program, which was part of the interlock device."

Encore Plastics, however, disputed the Shaffer lawsuit claim, saying the lawsuit had not produced evidence that the company "deliberately removed an equipment safety guard from the trim press."

Encore said it was implausible for the Shaffer lawsuit to allege that the company disabled safety features on the side doors but left them on the rear doors.

"Plaintiffs implausibly assert, without any factual basis, that Encore deliberately disabled the side doors' interlock devices yet left them intact on the end doors," Encore Plastics said. "Such conclusory conjecture is insufficient to allege deliberate [emphasis in original] removal."

The judge wrote in her June 2023 preliminary ruling that she was not directly addressing the disputed claims but rather ruling only that Encore hadn't met the legal standard to dismiss the case before trial.

"Whether the allegations in [Shaffer's lawsuit] can be supported by adequate evidence such that Shaffer will prevail on the merits is a question for another day," Phipps said.

Whatever the final result of the case, the two sides have sparred over the legal liability standard that should be applied.

"Encore may be liable for monetary damages only if plaintiffs can show that Encore deliberately intended to injure or kill [emphasis in original] Mr. Shaffer," Encore said. "Here, plaintiffs have failed to allege facts [emphasis in original] suggesting that Encore intended to kill or injure Mr. Shaffer."

But the Shaffer lawsuit urged the court to consider the "combined effect" of its allegations and said Encore's interpretation of intentional tort law is wrong.

"Encore's murder theory — that it must have intentionally killed Mr. Shaffer — is simply not the law," the Shaffer lawsuit said. "Rather, the removal of a equipment safety guard is 'an example' of a specific intent required to impose liability."

Legal arguments aside, though, the Shaffer lawsuit at several points also sought to draw attention to Todd Shaffer's suffering. An obituary in a local paper described him as a caring person and a "kid at heart" who enjoyed spending time with his daughters and nephews.

"Mr. Shaffer experienced conscious pain and suffering as he was crushed by the eject conveyor and afterwards," it said. "He suffered pain, fear and anxiety until he succumbed to death from his injuries."