The van was definitely next to the median, but it looks like the road construction (noticing the pylons) turned the emergency lane into a traffic lane.
Its possible a car could have stalled there when the traffic was slower, and the department of transportation/cops didn't have it towed immediately, so it may have been more their fault than the guy who's van died.
Also, if there was construction, its very important for the DOT to slow the traffic down ahead of time as well or they could be liable.