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From Products Liability Law Daily, April 23, 2014

$1.1 million award reversed because evidence insufficient to establish manufacturer’s silica was inhaled by railroad worker

By John W. Scanlan, J.D.

A $1.1 million damage award to the widow of a railroad brakemen who died of pulmonary fibrosis was reversed by the Mississippi Supreme Court because she did not present sufficient evidence to establish that an appreciable amount of the silica he inhaled during his career was produced by a silica company (Mississippi Valley Silica Company, Inc. v. Reeves, April 17, 2014, Kitchens, J.).

Background. Robert Reeves worked as a brakeman and a conductor for the Illinois Central Railroad from 1947 to 1991. While working as a brakeman, he was required to keep his head out the window while the train was in motion, which exposed his face to sand and dust that was used for wheel traction in braking and when traveling on steep grades. In 2003, he developed coughing problems and heart arrhythmia. He was diagnosed with scarring of the lungs (fibrosis), and by 2006 he required the use of an oxygen tank. By March 2010, he was using oxygen constantly, and he died in August 2010 of interstitial pulmonary fibrosis.

In 2002, he had joined other plaintiffs in suing multiple defendants alleging that he was afflicted with silicosis, which is caused by exposure to respirable crystalline silica. The case was dismissed without prejudice after the Mississippi Supreme Court disallowed another multi-plaintiff action and permitted refiling by separate plaintiffs. Reeves refiled his own case in 2007 against 32 defendants, including Mississippi Valley Silica Company, Inc. After he died, his wife Gwendolyn Reeves was substituted as plaintiff, and by the time the case came to trial in 2012, Mississippi Valley was the only remaining defendant (although the company went out of business in 1978, the case was defended by its insurer). Gwendolyn Reeves was seeking damages only for exposure to the silica portion of the dust because Robert Reeves had previously filed a separate action for the asbestos component.

The jury found in favor of Reeves, awarding her economic and noneconomic damages, plus punitive damages, for a total verdict of $1.65 million. The court determined that Mississippi Valley was responsible for half of the compensable damages, plus attorneys’ fees, for a total of $1,132,433.70. Both the company’s motions for a directed verdict and for judgment notwithstanding the verdict were denied, and it appealed.

Product identification. The state high court found that Gwendolyn Reeves failed to carry her burden of proving that Mississippi Valley was the source of the silica that caused her husband’s death. In his testimony, Robert had difficulty recalling the brand of sand used by the railroad, specifically remembering using Mississippi Valley on only one occasion during a flood in the 1970s. He also never personally loaded the sand. Although his long-time engineer testified that Mississippi Valley sand was used during the 1960s and 1970s, he admitted on cross-examination that he could not recall the brand name of the sand, and his testimony that he had been told by unknown railroad workers that Mississippi Valley had supplied the sand to the railroad was insufficient. Reeves’ industrial hygiene expert, who testified that Reeves had been exposed to silica for over 1,500 hours during his career, did not provide any evidence that the silica was from Mississippi Valley sand. There was no other evidence, such as records or invoices or witnesses that could testify that they put Mississippi Valley sand into Illinois Central locomotives, that indicated that the company’s sand had been sold to or used by Illinois Central for any purpose.

The case number is 2012-CA-01702-SCT.

Attorneys: Charles G. Copeland (Cosmich, Simmons & Brown, PLLC) for Mississippi Valley Silica Company, Inc. Timothy W. Porter (Porter & Malouf, PA) for Gwendolyn M. Reeves.

Companies: Mississippi Valley Silica Company, Inc.

MainStory: TopStory DamagesNews EvidentiaryNews ChemicalNews MississippiNews

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