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From Products Liability Law Daily, August 24, 2016

Mississippi appellate court sinks silica sand supplier’s objections to $1.1M verdict

By Susan Lasser, J.D.

A jury award for the wife of a steel worker who died from silicosis will stand, according to a decision by the Mississippi Court of Appeals in response to objections by a silica sand supplier. The jury determined that the supplier breached its duty to warn bystanders such as the worker of the risks of breathing the product’s resulting dust, and apportioned 35 percent of the fault to the supplier. The trial court entered judgment in favor of the wife in the amount of $1,095,0001, which included $500,000 in punitive damages (Mississippi Valley Silica Co. v. Barnett, August 23, 2016, Wilson, J.).

The worker had been employed by Mississippi Steel and Iron Company (MSIC) for 30 years, and during the 1960s, he worked in a covered area as a saw operator and crane operator, about 40 to 65 feet away from sandblasting operations. He and a co-worker both testified that silica sand supplied by Mississippi Valley Silica Company (Valley) was one of two brands of sand used in the sandblasting. They also testified that their work conditions were very dusty due to the nearby sandblasting operations. After retirement, the worker was diagnosed with silicosis, and in 2010 he filed suit against Valley and other defendants, alleging that his disease was caused by his exposure to silica at MSIC. He further alleged that Valley’s sand was defective because it failed to provide adequate warnings and instructions regarding the dangers of silica. Valley joined other defendants in arguing that because the worker’s injuries were discoverable in 2005, the applicable three-year statute of limitations had run before he filed his lawsuit in 2010. The trial court denied these motions, however. The worker died in February 2011, and his wife was substituted as the plaintiff in her individual capacity and on behalf of her husband’s wrongful death heirs.

The case went to trial against Valley only, and the only claim at trial was that Valley failed to provide adequate warnings of the dangers of silica. It was undisputed that Valley’s sand was manufactured, marketed, and sold for use in sandblasting operations, and that there were no warning labels or safety instructions on Valley’s sand during the relevant period. The jury returned a verdict in favor of the wife, finding that she had proven both economic ($165,615.73) and noneconomic ($1,034,384.27) damages. It assigned Valley 35 percent fault for the worker’s injuries. In the punitive damages phase, the jury returned a verdict for punitive damages in the amount of $500,000. After judgment was entered on the verdict, the trial court awarded the wife attorney fees; and denied Valley’s post-trial motions for judgment notwithstanding the verdict (JNOV) or a new trial and to alter or amend the judgment. Valley raised a number of issues on appeal. The court found no reversible error and, thus, affirmed trial court’s judgment in favor of the wife for actual and punitive damages. However, the court found that the lower court abused its discretion by awarding the wife $212,312.50 in attorney fees without any supporting findings of fact or conclusions of law. Therefore, the award of attorneys’ fees was vacated and remanded for redetermination.

Absence of an estate. The court held that the absence of an estate did not require reversal. Valley argued that pursuant to the wrongful death statute, a wrongful death plaintiff must prove that the wrongful conduct proximately caused the death; and because the jury found that Valley "was not responsible" for the worker’s death, the wife lacked standing to recover any damages related to the worker’s exposure to silica. The court rejected this argument because the jury found that the company’s failure to warn was a proximate cause of the worker’s lung condition and death; the company’s objection was not a jurisdictional issue of "standing," but rather a real-party-in-interest objection, and was waived because it was not timely asserted; and even if a timely objection had been made, the court ruled that Mississippi Supreme Court precedent did not require reversal, but at most remand to afford the wife "reasonable time" to open an estate and join it as a party.

Statute of limitations. The court also held that the supplier was not entitled to judgment as a matter of law or a new trial on the issue of statute of limitations. The applicable statute of limitations was three years, and because the case involved a "latent disease," the limitations period began to run when the worker discovered, or by reasonable diligence should have discovered, his injury. The court found procedural complications with the supplier’s request, including raising the statute of limitations in a post-trial motion as a ground for a new trial, not JNOV, as required. Not only was Valley’s request procedurally barred, but the court also rejected the defense on the merits, finding that the evidence created a genuine issue of material fact with respect to the applicability of the statute of limitations. The worker’s medical records suggesting the possibility of silicosis were insufficient to trigger the statute as a matter of law. The determination was one for the jury, but the supplier failed to request a jury determination.

Jury instruction—duty to warn. The court next held that the trial court’s instruction on the supplier’s duty to warn was consistent with Mississippi Supreme Court precedent. Valley complained that Mississippi law does not impose a duty to warn "bystanders." The court found that read as a whole, the trial court’s instructions recognized a duty to provide a reasonable warning concerning dangers of which the manufacturer knew or should have known to those persons "who may reasonably be expected to be in the vicinity of the product’s probable use and to be endangered by it if defective." The worker was not a casual bystander, but rather worked in close proximity to sandblasting for a decade and regularly observed the supplier’s silica sand in its original packaging. The trial court’s instructions were consistent with state high court precedent, and therefore, the trial court’s instruction was not error.

Sufficient evidence to sustain verdict. The court further ruled that the wife provided sufficient evidence to support the verdict. The supplier argued that she failed to prove that her husband was exposed to any Valley sand, that he was exposed to harmful levels of silica from Valley’s sand, or that Valley breached any duty to warn. However, the evidence that the worker was exposed to the supplier’s sand was sufficient and in the form of the worker’s and his co-worker’s testimony that sand supplied by Valley was used regularly in MSIC’s sandblasting operations. They also identified the Valley sandbags specifically, and it was up to the jury to assess the workers’ credibility. The wife did not have to uncover decades-old invoices to prove her case.

Additionally, the wife presented sufficient evidence that her husband was exposed to harmful levels of respirable silica. An expert in pulmonary diseases associated with silica exposure testified that the worker had silicosis, and he opined that the worker’s exposure to fine airborne silica particles from sandblasting, five days a week for a decade, was more than sufficient to cause silicosis. An industrial hygienist provided supporting expert evidence as well.

The wife’s evidence that the supplier breached is duty to provide adequate warnings also was sufficient, the court said. According to Valley, there was no evidence that it should have known during the 1960s that sandblasting operations could expose "bystanders" such as the worker to harmful levels of respirable silica. However, a letter written by Valley’s former president and part owner stated in part that from 1960 to 1976, the industry was "aware of the health hazards inherent in the sandblasting industry." The evidence was reinforced by a physician’s testimony that silica exposures related to sandblasting had been a known cause of silicosis for many decades prior to the worker’s exposures in the 1960s. The court concluded that there was sufficient evidence for a jury to find that, between 1960 and 1970, Valley "knew or … should have known about the danger" inherent in the use of silica in sandblasting operations, even as it related to a "bystander" such as the worker. Given that there was sufficient evidence that Valley was aware of a relationship between sandblasting and silicosis, there was sufficient evidence for a jury to find that the supplier knew or should have known that silica was a danger to persons working in such close proximity to sandblasting.

Damages. The court further held that the lower court did not err by submitting the issue of punitive damages to the jury. Valley argued there was insufficient evidence to support a finding that it "acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud." However, the jury heard evidence that the supplier placed no warning on its sandbags even though silicosis had been a known danger of sandblasting for decades. The evidence permitted an inference that Valley did nothing at all to warn of a known and deadly risk. As such, a reasonable trier of fact could have found that Valley’s conduct evidenced a reckless disregard for the safety of others.

The court additionally held that the trial court was not required to remit the award of punitive damages to $0, and the lower court correctly applied the apportionment statute and the noneconomic damages cap.

Attorney fees. Because the trial court made findings concerning the reasonableness of the plaintiff’s attorney fee or Valley’s objections to them, the appellate court held that the award of attorney fees be vacated and remanded to the trial court. On remand the trial court is required to determine and award reasonable attorney fees based on findings of fact and conclusions of law pursuant to Mississippi case law.

The case is No. 2013-CA-01296-COA.

Attorneys: John D. Cosmich (Cosmich Simmons & Brown, PLLC) for Mississippi Valley Silica Co., Inc. Patrick Malouf (Porter & Malouf, P.A.) for Dorothy Barnett.

Companies: Mississippi Valley Silica Co., Inc.

MainStory: TopStory WarningsNews SofLReposeNews EvidentiaryNews DamagesNews ChemicalNews MississippiNews

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